Vang & Chung (No 12)

Case [2025] FedCFamC1F 198

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Vang & Chung (No 12) [2025] FedCFamC1F 198 

File number: SYC 1433 of 2020
Judgment of: HARPER J
Date of judgment: 26 March 2025
Catchwords: FAMILY LAW – COSTS – Where the husband, his father who is the second respondent, and two non-party objectors seek costs for two applications brought by the wife – Where the wife did not file a Response to the applications for costs –Where the husband sought costs on an indemnity basis for the wife’s application and costs in a fixed sum for his application for costs – Where the father and the non-party objectors sought costs in a fixed sum – Where the wife was wholly unsuccessful in her Amended Application in a Proceeding – Where the wife was wholly unsuccessful in her Application for Review against one objector but partially successful against the second objector – Where the wife’s conduct and lack of success justify an order for costs in favour of the husband, the father and one objector – Where the circumstances of the wife’s conduct are exceptional and justify an award of costs on an indemnity basis in the husband’s favour – Where the husband failed to demonstrate a basis for injunctive relief against the wife – Order for the wife to pay costs of the husband’s application for costs in a fixed amount – Orders for the wife to pay the costs of the father and one objector in fixed amounts on a party/party basis.    
Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 114, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Atkins & Hunt (Costs) [2017] FamCAFC 131

Harding & Callaghan [2023] FedCFamC1F 91

Harris & Dewell and Anor (No 2) (2018) FLC 93-863; [2018] FamCAFC 180

Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83

Munday and Bowman (1997) FLC 92-784

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Prantage & Prantage (Costs) [2014] FamCA 850

Vang & Chung (No 3) [2024] FedCFamC1A 199

Vang & Chung (No 3) [2024] FedCFamC1F 101

Vang & Chung (No 6) [2024] FedCFamC1F 604

Division: Division 1 First Instance
Number of paragraphs: 50
Date of last submission: 13 November 2024
Date of hearing: On the papers
Place: Sydney
The Applicant: Did not participate
Solicitor for the First Respondent: Broun Abrahams Burreket
Solicitor for the Second Respondent: Mangioni Biggs + Co
Solicitor for the Non-Party Objectors: Clayton Utz

ORDERS

SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS VANG

Applicant
AND:

MR CHUNG

First Respondent

MR D

Second Respondent

AC ACCOUNTANTS

Non-Party Objector

Y PTY LTD

Non-Party Objector

ORDER MADE BY:

HARPER J

DATE OF ORDER:

26 MARCH 2025

THE COURT ORDERS THAT:

1.Within 30 days, the applicant wife (“wife”) pay:

(a)The costs of the first respondent husband (“husband”) of the Amended Application in a Proceeding filed on 5 July 2024 by…

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AGLC
Vang & Chung (No 12) [2025] FedCFamC1F 198
Case
[2025] FedCFamC1F 198
Decision Date

CaseChat Overview and Summary

In the matter of Vang & Chung (No 12), the Federal Circuit and Family Court of Australia heard applications for costs brought by the husband, his father, and two non-party objectors against the wife. The wife had filed two applications which were unsuccessful, leading to the present applications for costs. The husband sought indemnity costs for the wife's application and costs in a fixed sum for his own application. The father and the non-party objectors sought costs in a fixed sum. The wife did not file a Response to the applications for costs. The legal issues the court had to decide were whether the wife's conduct justified an order for costs and, if so, on what basis the costs should be awarded.

The court found that the wife's conduct and lack of success justified an order for costs in favour of the husband, the father, and one objector. The court held that the circumstances of the wife's conduct were exceptional and justified an award of costs on an indemnity basis in the husband's favour. The husband had provided examples of the wife's purported unreasonable conduct and delinquency, such as her failure to follow the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and her pursuit of further interlocutory applications, reviews, and appeals. The court held that the husband had demonstrated misconduct by the wife that warranted an indemnity costs order. The court awarded the husband indemnity costs in the amount of $15,614.50 for the wife's application and costs in a fixed sum of $2,000 for his own application. The court also awarded costs to the father and one objector in fixed amounts on a party/party basis.

The court ordered the wife to pay the husband's costs of his application for costs in a fixed amount of $2,000. The court also ordered the wife to pay the costs of the father and one objector in fixed amounts on a party/party basis. The court dismissed the husband's application for injunctive relief against the wife as he failed to demonstrate a basis for such relief. The court held that the wife's conduct did not warrant an award of costs to the second objector or to the husband on an indemnity basis for his application for costs.

Orders

Orders of the court

SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VANG

Applicant

AND:

MR CHUNG

First Respondent

MR D

Second Respondent

AC ACCOUNTANTS

Non-Party Objector

Y PTY LTD

Non-Party Objector

ORDER MADE BY:

HARPER J

DATE OF ORDER:

26 MARCH 2025

THE COURT ORDERS THAT:

1. Within 30 days, the applicant wife (“wife”) pay:

(a) The costs of the first respondent husband (“husband”) of the Amended Application in a Proceeding filed on 5 July 2024 by the wife on an indemnity basis in the sum of $15,614.50;

(b) The costs of the husband of his Application in a Proceeding filed on 8 October 2024 seeking an award of costs fixed in the amount of $2,000.

(c) The costs of the second respondent of the Amended Application in a Proceeding filed on 5 July 2024 by the wife and his Application in a Proceeding filed on 8 October 2024 seeking an award of costs, calculated on a party/party basis and fixed in the amount of $7,692.06;

(d) The costs of AC Accountants of the wife’s Application for a Review filed on 5 July 2024 fixed in the amount of $3,447.17.

2. The Application in a Proceeding filed by the husband on 8 October 2024 and the other applications for costs the subject of these orders be dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As pointed out by the father, the nature of hearing the two applications of the wife together on 28 August 2024, may suggest that the costs incurred for each application cannot meaningfully be distinguished. In this way costs awarded in respect of one application may overlap with costs incurred for the other application.CONCLUSION ON JUSTIFYING CIRCUMSTANCES I am satisfied the wife’s conduct and lack of success justify an order for costs in favour of the husband, the father and AC Accountants. The amount of costs to be paid to the father and AC Accountants will be in the fixed amounts sought by those parties on a party/party basis. The wife had a measure of success in relation to the subpoena issued to Y Pty Ltd. I am not satisfied this objector should receive a costs order in its favour. The question thus remains the basis on which costs should be awarded in favour of the husband.INDEMNITY COSTS As mentioned, the husband argues that the circumstances are such that the Court should award indemnity costs in his favour. Indemnity costs are awarded only in exceptional circumstances and are rare (Moorcroft & Moorcroft (2020) 60 Fam LR 361; Harris & Dewell and Anor (No 2) (2018) FLC 93-863). The husband relied on Munday and Bowman (1997) FLC 92-784 at 84,660 where Holden CJ set out five circumstances in which an award of indemnity costs might be justified, the most relevant circumstance in this case being misconduct. He provided examples of the purported unreasonable conduct and delinquency by the wife, including the following:(a)The wife’s failures to follow the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) as regards the length of her applications and oral submissions, such as her affidavit in support of her Application in a Proceeding which exceeded 25 pages. (b)The wife’s failure to comply with court orders, as mentioned above, to provide the husband and the father with particulars to understand her case, and her pursuit of further interlocutory applications, reviews and appeals;(c)The wife’s consistent bringing of applications with little prospects of success, such as the subject Amended Application in a Proceeding which was filled with incompetent orders incapable of being made or enforced; and(d)The lengthy manner in which the wife made her oral submissions which the husband claimed unnecessarily prolonged hearings. The husband seeks indemnity costs fixed in the amount of $15,614.50. This sum is limited to the costs he incurred for the wife’s Application in a Proceeding filed 2 July 2024 and amended 5 July 2024, it does not include costs for the Application for Review. The husband has costs agreements with his counsel and solicitor and applied a 25 per cent discount on the appearance fees on account of the Application for Review being heard at the same time. In the alternative, if costs were to be awarded on a party/party basis, he proposed for the sum to be fixed in the amount of $8,978.15. His view is that a fixed amount is appropriate in the circumstances where there is evidence of costs incurred and because a process of assessment would bring more expense and delay to the parties.

Ratio Decidendi

Legal Principle Established

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