Vang & Chung

Case [2024] FedCFamC1A 25

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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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AGLC
Vang & Chung [2024] FedCFamC1A 25
Case
[2024] FedCFamC1A 25
Decision Date

CaseChat Overview and Summary

In this case, Ms Vang, the applicant, appealed against an order made by the Federal Circuit and Family Court of Australia. The appeal was ultimately dismissed, and the matter was settled with the applicant withdrawing her appeal on the morning of the hearing. The respondent, Mr Chung, sought an order that the applicant pay his costs in a lump sum amount. The applicant opposed any costs order, arguing that the respondent had superior access to financial resources. However, the court found 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. The applicant's conduct inevitably increased the costs incurred by the respondent, and 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. The appeal lacked utility, and the applicant was ordered to pay the respondent's costs in the fixed sum of $9,194.07.

The legal issues the court was required to decide were whether the applicant's conduct warranted the making of a costs order and, if so, what the appropriate quantum of costs should be. The court found that the applicant's conduct inevitably increased the costs incurred by the respondent, and that the appeal lacked utility. The court also noted that 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. The court considered these factors in determining the appropriate quantum of costs. The court found that the respondent's costs were reasonable and necessary, and that the applicant's conduct warranted the making of a costs order. The court ordered the applicant to pay the respondent's costs in the fixed sum of $9,194.07.

In summary, the court found that the applicant's conduct inevitably increased the costs incurred by the respondent, and that the appeal lacked utility. The court also noted that 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. The court found that the respondent's costs were reasonable and necessary, and that the applicant's conduct warranted the making of a costs order. The court ordered the applicant to pay the respondent's costs in the fixed sum of $9,194.07. This decision serves as a reminder 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.

Orders

Orders of the court

NAA 341 of 2023

SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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