Vang & Chung
[2024] FedCFamC1A 25
•13 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Vang & Chung [2024] FedCFamC1A 25
Appeal from: Order dated 14 November 2023; Transcript dated 14 November 2023. Appeal number: NAA 341 of 2023 File number: SYC 1433 of 2020 Judgment of: MCCLELLAND DCJ, AUSTIN & GILL JJ Date of judgment: 13 March 2024 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appeal was discontinued on the morning of the hearing and the question of costs was reserved – Where the respondent seeks that the applicant pay his costs in a lump sum amount – Where the applicant opposed any costs order – Where the applicant contends the respondent has superior access to financial resources – Where financial impecuniosity is not a bar to the making of a costs order where the conduct of a party may otherwise warrant the making of such an order – Where the conduct of the applicant inevitably increased the costs incurred by the respondent – Where the applicant rejected the respondent’s letter of settlement indicating he would consent to the discontinuance of the appeal with no order as to costs – Where the appeal lacked utility – Applicant to pay the costs of the respondent in the fixed sum of $9,194.07. Legislation: Family Law Act 1975 (Cth) s 79 and s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17)
Cases cited: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; [1993] FCA 585
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Stoian & Fiening (Costs) [2014] FamCA 944
Number of paragraphs: 36 Date of hearing: 29 February 2024 Place: Sydney Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: G & D Lawyers Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
NAA 341 of 2023
SYC 1433 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS VANG
Applicant
AND: MR CHUNG
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, AUSTIN & GILL JJ
DATE OF ORDER:
29 FEBRUARY 2024
BY CONSENT, IT IS ORDERED THAT:
1.Appeal NAA 341 of 2023 is dismissed.
IT IS FURTHER ORDERED THAT:
2.The applicant is to pay the costs of the respondent in the fixed sum of $9,194.07.
3.Reasons for judgment in respect of Order 2 are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vang & Chung has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, AUSTIN & GILL JJ:
The application for leave to appeal in this matter was listed for hearing on 29 February 2024. On the morning of the hearing, the applicant withdrew her appeal. Consequently, the Full Court made orders by consent that the appeal be dismissed, together with a further order, which was not the subject of consent, that the applicant pay the respondent’s costs in the sum of $9,194.07. These reasons relate to that costs order.
BACKGROUND
We provide the following brief outline of background facts and contentions insofar as they are relevant to the question of costs.
The applicant wife, Ms Vang (“the applicant”), was born in 1989 and is currently 34 years of age. The respondent husband, Mr Chung (“the respondent”), was born in 1988 and is currently 35 years of age.
The parties were together for approximately two years, commencing cohabitation in 2015, marrying in July 2017 and separating around September 2017. An order for divorce was made in late 2019. There are no children to the relationship.
The substantive proceedings were initiated by the applicant on 3 March 2020. Those proceedings relate to property adjustment orders sought by the applicant pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
As noted by the Chief Justice in a notation to orders made on 11 September 2023, there have been approximately 20 court events in this matter. On 15 September 2023, a senior judicial registrar made orders that the applicant had exhausted the number of applications she could file without leave of the Court and a notation was made that she would have to seek leave from the Court before making any additional applications.
On 7 November 2023, the applicant filed an Amended Application in a Proceeding in which, relevantly, she sought the following order in relation to a property at E Street, Suburb F (“E Street”):
8. If the [Suburb F] property will be listed for sale, apart from seeking an order for weekly spouse maintenance of $748, then also seek an order to receive a lump sum amound of $750,000 for litigation funding; the fund can be transferred to the Applicant wife’s personal account, or to any lawyer’s account who act for me. The rest of house sale fund must be held in trust account under joint names under the Applicant and [Mr Chung] for the interest bearing purpose; and the money cannot be used, transferred by either parties without the court orders until pending the outcome of the final hearing
(As per the original)
That Amended Application in a Proceeding filed 7 November 2023 was listed for mention before the primary judge on 14 November 2023. During those proceedings, the applicant was self-represented and the respondent was represented by Ms Burke.
Another solicitor appeared before the primary judge on 14 November 2023, Mr II, who announced an appearance “for the proposed second respondent”,[1] Mr D who is the respondent’s father (“the respondent’s father”) and the mortgagee who had initiated the sale of E Street. However, no application was made for the respondent’s father to be joined to the proceedings, nor was any such order made.
[1] Transcript 14 November 2023, p.2 lines 7–8.
After taking appearances, the primary judge advised the parties that the listing of the matter was the first return of the applicant’s Amended Application in a Proceedings filed 7 November 2023.[2]
[2] Transcript 14 November 2023, p.2 lines 15–17.
The primary judge sought advice from Mr II as to his client’s “attitude” to the applicant’s application,[3] which as noted, included an application to restrain the respondent’s father from accessing the entirety of the net proceeds of sale of the E Street property.
[3] Transcript 14 November 2023, p.2 lines 17–18.
In response, Mr II advised the Court that his client would consent to orders that quarantined 50 per cent of the net proceeds of sale, which was to remain in Mr II’s firm’s trust account pending further order of the Court or the consent of the parties. The document containing those proposed orders was marked as Exhibit “A” in the first instance proceedings.
After discussing a range of matters including the issues that ultimately required determination on an interim and final basis and the process for the determination of those issues, the primary judge made the following orders:
1. The Application in a Proceeding filed by the Applicant Wife and returnable on 14 November 2023 be adjourned to 10.00 am on 22 January 2024.
2. The document entitled “Consent Orders” be marked as Exhibit “A”.
3. Orders be made in accordance with Paragraphs 2 and 3 of Exhibit “A”.
4. Order 9 of the orders dated 23 October 2023 be vacated.
THE COURT NOTES THAT:
A. Existing orders for the filing and service of affidavits will apply to any evidence in relation to the Application in a Proceeding returnable on 14 November 2023.
(Emphasis in original)
The document marked Exhibit “A” with redactions, reads as follows:
CONSENT ORDERSBY CONSENT IT IS ORDEREDSale of [E Street, Suburb F]
1. That in respect of the land situated at [E Street, Suburb F] contained in the certificate of title folio identifier … in Deposited Plan … (Property), the third party, as mortgagee, is, or continues to be, vested with authority to:(a) retain real estate agents and any other third parties to market and offer the Property for sale and to sell the Property by auction; and(b) undertake any and all such tasks as may be required in order to effect such a sale.2. That the proceeds of the sale of the Property be disbursed as follows and in the following order:
(a)payment of all rates, outgoings, statutory duties, taxes and charges in respect of the Property or incurred in connection with or as a result of the sale of the Property;
(b)payment (or reimbursement if already paid) of any expenses, fees and commissions which have been or are incurred or charged by a real estate agent or other third party engaged for the sale of the Property in respect of the sale of the Property;
(c)payment (or reimbursement if already paid) of any legal costs incurred in the sale of the Property;
(d)payment (or reimbursement if already paid) of any other fees and expenses, including PEXA fees, incurred in connection with the sale of the Property;
(e)payment of 50% of the amount of the proceeds of sale remaining after deducing for the payments set out in Orders 2(a)-(d) above to the Third Party or as he may direct, this amount not to exceed the amount of the loan owing and outstanding to the Third Party and secured by the Third Party’s mortgage registered on the title of the Property; and
(f)payment of the balance of the proceeds into the lawyer’s trust account of [ZZ Law Firm] for the Third Party.
3. The balance of the proceeds referred to in order (2)(f) above, or any part of them, shall be held and not be further disbursed from the lawyer’s trust account of [ZZ Law Firm] until the earliest of:
(a) further Court orders;
(b)written consent of all the parties; or
(c) 4pm on Monday, 22 January 2024.
Timetable for the balance of the Application4. [any existing timetabling orders].(As per the original)
APPLICATION TO ADDUCE FURTHER EVIDENCE
The applicant filed an Application in an Appeal on 6 February 2024 seeking that leave be granted to adduce further evidence being, the following documents:
(a)Affidavit of the applicant filed 6 September 2023;
(b)Affidavit of the respondent filed 3 October 2023;
(c)Affidavit of the respondent filed 15 January 2024 annexed to the affidavit of the applicant filed 6 February 2024; and
(d)Affidavit of Ms T filed 18 January 2024 annexed to the affidavit of the applicant filed 6 February 2024.
In circumstances where the application for leave to appeal was discontinued, it was unnecessary for the Court to consider that application. The fact that it was made, in respect to voluminous documentation is however relevant to the question of conduct of the proceedings and the quantum of costs sought by the respondent.
THE APPEAL
The proposed grounds of appeal are set out in the applicant’s Amended Notice of Appeal filed 6 February 2024. The applicant appealed only Order 2(e) of Exhibit “A” to the orders of the primary judge dated 14 November 2023. In the event of the appeal being upheld, the applicant made an application for that order to be discharged and for the Full Court to re-exercise discretion.
GROUNDS OF APPEAL
The proposed grounds of appeal were:
Ground 1. His Honour failed to afford procedural fairness to the Appellant.
Ground 2.His Honour erred in failing to quarantine sufficient funds from the sale of the [E Street] property to meet the wife’s claim in the proceedings.
Ground 3.His Honour failed to give sufficient reasons.
(As per the original)
The respondent opposed the appeal.
As an appeal against an interlocutory order, the applicant was required to obtain leave to appeal, which required the applicant to satisfy the cumulative test set out in Medlow & Medlow (2016) FLC 93-692 that:
(1)Firstly, that the primary judge’s decision is attended by sufficient doubt to warrant appellate intervention; and
(2)Secondly, that a substantial injustice would result if leave were refused, assuming the primary judge erred.
In circumstances where the matter is discontinued, the Court does not proceed to consider the merits of the appeal with a view to attempt to predict a hypothetical outcome had the matter continued to finality: Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at 624 (“Re Minister”), citing Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201. Costs may nonetheless be awarded including in circumstances where it is determined that a party has acted unreasonably: Re Minister at 626.
COSTS
The power to award costs is set out in s 117 of the Act. The relevant matters that the Court is required to consider are set out in s 117(2A) of the Act. In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123, the Full Court confirmed that it was not necessary for each of the factors listed in s 117(2A) to be established in order for the Court to make a costs order.
In terms of s 117(2A)(a) of the Act, the applicant contends that the Court should refrain from making an order for costs because the respondent has superior access to financial resources. In circumstances where the applicant owns a modest apartment in Suburb K and is currently in employment, we are satisfied that she has the capacity to satisfy the order for costs sought by the respondent. In any event, we note that financial impecuniosity is not a bar to the making of a costs order where the conduct of a party may otherwise warrant the making of such an order: Cross & Beaumont (2008) 39 Fam LR 389 at [60].
In respect of the conduct of the parties to the proceedings (s 117(2A)(c) of the Act), we have referred to the multiplicity of applications that have been made in this matter which resulted in orders being made requiring the applicant to obtain leave to file any further Applications in a Proceeding, including the application that gave rise to this appeal. We have also had regard to the fact that the applicant sought to adduce as, further evidence, voluminous affidavits – the perusal of which would have inevitably increased the costs incurred by the respondent.
In justifying discontinuance of the appeal, counsel for the applicant contended that, in considering whether there should be an order for costs, the Court should have regard to the fact that the applicant had the benefit of a subsequent decision by the primary judge delivered on 28 February 2024, being the day prior to the hearing of the appeal. The difficulty with that argument, however, is that we were not addressed on the significance of that decision or other orders of the Court made in the period subsequent to the commencement of the appeal. Accordingly, we have not regarded the publication of the primary judge’s reasons dated 28 February 2024 as being relevant to our consideration of the question of costs.
In respect to attempts to resolve the matter (s 117(2A)(f) of the Act), we note that, by letter dated 19 February 2024,[4] the solicitors for the respondent wrote to the solicitors for the applicant with brief submissions as to why it was contended the appeal was likely to be unsuccessful and indicating that the respondent would consent to the discontinuance of the matter with no order as to costs. In the event of the matter proceeding, the respondent also cautioned that, given the point in time that the offer was made, it would be necessary for the respondent to engage counsel. The letter of offer indicated that in the event of the matter not being discontinued, the respondent would seek an order for costs on an indemnity basis.
[4] Exhibit “A” in the appeal.
In our view, the applicant was imprudent in rejecting that offer, including for reasons which we set out immediately below.
In respect to any other matter that the Court considers relevant (s 117(2A)(g) of the Act), it was apparent the appeal lacked utility because the orders sought by the applicant in the event of her appeal being successful were a futility.
In her proposed Amended Notice of Appeal filed 6 February 2024, the applicant is seeking that the Full Court re-exercise discretion by granting her application for proposed Order 4 which was that:
4. That pending further order the whole of the net sale proceeds of the [E Street, Suburb F] property be paid into an interest bearing controlled moneys account in the names of the parties.
(As per the original) (Emphasis added)
That is, the applicant sought an injunction restraining the respondent’s father from accessing the entirety of the net proceeds of sale of E Street.
That proposal by the applicant gave rise to a futility because the Full Court is without power to make such an order in circumstances where the person who would be most affected by proposed Order 4 was the respondent’s father, who was not a party to the appeal and, in those circumstances, there would have been a complete denial of procedural fairness.
We are therefore satisfied that an order for costs should be made in accordance with the respondent’s application.
Calculation of quantum
Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) sets out the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a) of the Rules) or an order for costs to be assessed on a particular basis (r 12.17(1)(b) of the Rules).
By ordering costs to be paid by way of a fixed sum amount, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
We are satisfied that costs in the sum of $9,194.07 as sought by the respondent have been assessed in accordance with the appropriate rules and are “logical, fair and reasonable” in terms of the principles adumbrated in Stoian v Fiening (Costs) [2014] FamCA 944 at [91].
We therefore make an order for the applicant to pay the respondent’s costs in the fixed sum of $9,194.07.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Austin & Gill. Associate:
Dated: 13 March 2024
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