Vang & Chung (No 12)
[2025] FedCFamC1F 198
•26 March 2025
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Vang & Chung have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are property proceedings pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) between the wife, Ms Vang (“wife”) who was the applicant in the substantive proceedings, and the husband, Mr Chung (“husband”) who was the first respondent in the substantive proceedings. The second respondent, Mr D, is the father of the husband (“father”).
For the purposes of this judgment, I record there are two non-party objectors to subpoenas, AC Accountants and Y Pty Ltd (“Y Pty Ltd”). I will refer to them collectively as “the objectors”.
On 10 September 2024, I delivered judgment in Vang & Chung (No 6) [2024] FedCFamC1F 604 (“Vang & Chung (No 6)”). The relevant procedural history and background to these proceedings are set out in that judgment and in Vang & Chung (No 3) [2024] FedCFamC1F 101. I will not repeat what I have set out in there unless necessary for this judgment.
Vang & Chung (No 6) concerned two applications filed by the wife: an Application in a Proceeding filed on 2 July 2024 and amended on 5 July 2024 which sought an assortment of orders including the reopening of numerous finalised interim applications; and an Application for Review filed on 5 July 2024, seeking a review of orders made by a judicial registrar setting aside five subpoenas on 3 July 2024.
The applications were heard together on 28 August 2024. The wife’s Application in a Proceeding and its amendment were dismissed in full. The objections to the subpoenas the subject of the Application for Review were largely upheld. The subpoena to AC Accountants was set aside in full and the subpoena to Y Pty Ltd was, other than paragraphs 10 and 11, set aside.
On 8 October 2024, the husband, the father and the objectors each filed applications for costs against the wife.
ORDERS SOUGHT AS TO COSTS
The husband seeks that the wife pay his costs of her Amended Application in a Proceeding on an indemnity basis fixed in the sum of $15,614.50. In the alternative, he asks that the wife pay his costs on a party/party basis fixed in the amount of $8,978.15. He seeks that the wife pay the costs of his application for costs in the sum of $2,000. The husband also seeks an injunctive order that restrains the wife from dealing with the property at J Street, Suburb K (“Suburb K”) without the husband’s consent as security for any costs order made. He does not seek any costs in respect of the wife’s Application for Review.
In the father’s Application in a Proceeding filed 8 October 2024, he sought orders that the wife pay his costs in relation to her Application in a Proceeding on an indemnity basis fixed in the sum of $35,461.92. However, his position changed in his Written Submissions filed 13 November 2024. He seeks costs for the wife’s Amended Application in a Proceeding and the costs of hearing her Application for Review in a fixed sum, calculated on a party/party basis, in the amount of $7,692.06. He submitted that he no longer sought an award of indemnity costs, even if the circumstances may have warranted it.
The objectors seek the wife pay their costs of her Application for Review fixed in the sum of $3,447.17 for Y Pty Ltd and fixed in the sum of $3,447.17 for AC Accountants. The actual costs incurred by the objectors amount to $15,579.33 (or $7,789.67 each when apportioned 50/50), accordingly the amount of costs sought by the objectors represents approximately 44 per cent of their actual costs incurred for the Application for Review.
The wife did not file a Response to any of the applications for costs. The wife filed no submissions in accordance with the orders of the Court.
The parties were notified of the listing for delivery of judgment at 9.30 am on 26 March 2025 at 5.04 pm on 25 March 2025. At 1.42 am on 26 March 2025, that is, after notification that judgment would be delivered on 26 March 2025, the wife emailed to my Chambers a document purporting to be submissions in relation to the applications for costs the subject of this judgment. No application for leave was filed.
Such an approach is entirely inappropriate. Email communication with Chambers without leave is itself to be strongly discouraged. I have not had regard to the submissions of the wife filed egregiously late, without leave and literally a few hours before delivery of judgment.
PRINCIPLES REGARDING COSTS
In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs (s 117(1)). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just (s 117(2)), being costs in the conventional sense, that is, as indemnity for another’s liability for professional fees and out of pocket expenses reasonably incurred in the litigation.
The Court has a wide discretion, which is to be exercised judicially (Parke & The Estate of the Late A Parke (2016) FLC 93-748; Atkins & Hunt (Costs) [2017] FamCAFC 131). When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 117(2A):
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
No one factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient (Prantage & Prantage (Costs) [2014] FamCA 850 at [12]).
I have had regard to all the factors set forth in s 117(2A).
DISCUSSION
Section 117(2A)(a) – the financial circumstances of the parties
The husband claimed that he has little assets and substantial liabilities. He lives in Country YY and works at a small market earning AUD$105 weekly, and is reliant on financial assistance from his mother to meet basic living expenses.
The husband and the objectors relied on the argument that impecuniosity is not a bar to the making of a costs order with respect to any financial difficulty of the wife.
The husband accepted that the wife had deposed to being unemployed since sometime in 2024 but noted that she was previously employed in a well-paid position as a professional earning about $90,480 per annum and that she currently owned the property in Suburb K with estimated equity valued at $165,666.
Section 117(2A)(c) – the conduct of the parties
The husband, the father and the objectors complained that the wife’s conduct during proceedings generated substantial and unnecessary costs. I refer to a number of these conduct issues in Vang & Chung (No 6).
In her Amended Application in a Proceeding, the wife sought to litigate the same issues which informed a previous interlocutory decision and were the subject of appeal. At [24] of Vang & Chung (No 6) I remarked this was “doubly impermissible” as it could not only undermine the appellate process, but was an abuse of process to agitate issues already determined. The wife demonstrated no material change in circumstances to justify her attempts to revisit the same issues (at [28]). She presented evidence in a “convoluted and disorganised manner” which ran to hundreds of pages (at [20]). And as observed at [37], the wife “consumed an enormous amount of court resources pursuing poorly conceived claims with poor prospects of success”.
The husband made further complaints about the extensive number of applications, affidavits, reviews and appeals the wife filed over the course of the long-standing proceedings. He complained the material filed by the wife was “difficult to understand”, “at times incomprehensible” and “often inadmissible in form”, yet his legal team was required to prepare and respond to such material at significant cost to the husband. He also asserted the wife was non-compliant with court orders including to provide better particulars.
The father asserted the wife failed to comply with court orders made on 4 March 2024 for her to particularise her claim against him. He also raised that in relation to his being restrained by the wife from dealing with proceeds of sale of property, that he will bear any damages that may result from any failure of the wife’s claims as she has refused to provide an undertaking as to damages. Meanwhile, he says he conducted himself in a way to ensure the wife had fair opportunity to make her claims.
As regards the wife’s Application for Review, there were deficiencies in all subpoenas sought, with categories too widely drawn, unjustified lengthy time frames, and schedules vaguely and oppressively worded so that it was difficult for recipients to discern how to comply (Vang & Chung (No 6) at [54]–[55]). The objectors submitted that the wife had previously issued Y Pty Ltd with a subpoena in 2022 which was set aside, and that the 2024 subpoena was a second attempt by the wife at coherence. The objectors said they already incurred substantial legal costs setting aside the 2022 subpoena, the 2024 subpoena and now the Application for Review.
Section 117(2A)(e) – whether either party has been wholly unsuccessful
The wife was wholly unsuccessful as regards her Amended Application in a Proceeding which was dismissed in full.
The wife was wholly unsuccessful in her review of the decision setting aside the subpoena to AC Accountants.
She was not wholly unsuccessful in her review of the subpoena issued to Y Pty Ltd, which though largely set aside, two categories of the schedule were reinstated upon review.
Overall, in the wife’s Application for Review she was successful in preserving some categories across three of the five subpoenas under review, and two subpoenas were set aside in full.
Section 117(2A)(g) – other relevant matters
The objectors are not parties to the proceedings and are third parties to the marriage. On this basis the objectors submitted the Court may more readily award costs in their favour.
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.
The award of indemnity costs is exceptional. In my view, the circumstances described above fall within the exceptional category. I will order the wife to pay the husband’s costs on an indemnity basis in the amount of $15,614.50.
INJUNCTIVE RELIEF
The husband seeks an injunctive order against the wife from dealing with the Suburb K property as security for any costs order made and/or for future costs orders in the following terms:
The Applicant Wife be hereby restrained from selling, disposing, further encumbering or otherwise dealing with the property situate at [J Street, Suburb K] without the consent of the Respondent Husband.
In his affidavit filed on 8 October 2024 the husband states he does not make a claim on the Suburb K property in the substantive proceedings and seeks the injunction only for the purposes of securing costs.
However, the husband made no submissions in support of this injunction as a form of security for costs.
Section 117(2) empowers the Court to order security for costs. Section 114 of the Act provides that the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including an injunction in relation to the property of a party to the marriage.
In Harding & Callaghan [2023] FedCFamC1F 91 at [9] I set out the relevant principles:
The Court has a broad power to grant injunctive relief pursuant to s 114 of the Act. The principles applicable to the grant of an interlocutory injunction are well known and set out in the decision of Tsiang & Wu (2019) FLC 93-911 (“Tsiang”) at [20]–[23]. The applicant first must show a prima facie case, that is, a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial and secondly, whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. These are related, not independent, questions: Warner-Lambert Co LCC v Apotex Pty Ltd (2014) 311 ALR 632 at [70]. In the context of applications pursuant to s 79 or s 90SM of the Act, part of the consideration relating to the balance of convenience is the applicant must show that there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant: see also Mullen and De Bry (2006) FLC 93-293 (“Mullen”). In Tsiang at [27] the Full Court confirmed the risk must be real and not theoretical, and be based in the evidence. It has also been said by the Full Court that a more liberal approach to asset preservation orders is warranted in family law matters: Mullen at [43].
I have already discussed the husband’s application for costs and am satisfied that an award of costs should be made in his favour.
The husband claimed that as of 12 November 2024 the sum of $5,444.07 remains to be paid by the wife for a costs order made on 29 February 2024. He also pointed out that Appeals NAA69/2024 and NAA70/2024 brought by the wife have since been determined and orders were made for the wife to pay him the sum of $15,000 for costs incurred (Vang & Chung (No 3) [2024] FedCFamC1A 199). It is unclear the total amount, if any, that remains outstanding for payment of these orders.
I am not satisfied the husband has demonstrated a basis for the injunctive order he seeks. There is no evidence of a threat of dissipation. He has available the usual powers of enforcement under the Rules. That part of his application will be dismissed.
CONCLUSION
For the foregoing reasons I am satisfied the orders at the commencement of this judgment should be made.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 26 March 2025
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