Vong & Barma
[2025] FedCFamC1F 219
•2 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vong & Barma [2025] FedCFamC1F 219
File number: SYC 4931 of 2024 Judgment of: HARPER J Date of judgment: 2 April 2025 Catchwords: FAMILY LAW – EX TEMPORE – COSTS – Where the wife seeks costs of interlocutory applications by the husband for appointment of a litigation guardian and injunctions – Where the proceedings were before the Court three times and the parties entered into consent orders – Where the wife seeks costs as agreed or assessed on a party/party basis – Where the husband’s application for a litigation guardian was inappropriate and should not have been brought on the basis of the available evidence – Where the husband’s conduct in bringing the application for a litigation guardian justifies an award of costs in the wife’s favour – Where both parties made offers in writing to resolve claims for injunctive relief – Where the ultimate consent position reached by the parties was closer to what was proffered by the wife than the husband – Where the conduct of the husband in relation to the injunctive orders sought does not justify an order of costs in the wife’s favour – Order for the husband to pay the wife’s costs of his interlocutory application as agreed or assessed as to 30 per cent only of those costs. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 95, 96, 117 Cases cited: Atkins & Hunt (Costs) [2017] FamCAFC 131
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Prantage & Prantage (Costs) [2014] FamCA 850
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 2 April 2025 Place: Sydney Counsel for the Applicant: Mr Reynolds Solicitor for the Applicant: Broaden Legal Counsel for the Respondent: Mr Cummings SC and Ms Merrett Solicitor for the Respondent: Juris Cor Legal ORDERS
SYC 4931 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VONG
Applicant
AND: MS BARMA
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
2 APRIL 2025
THE COURT ORDERS THAT:
1.The Applicant Husband (“husband”) pay the Respondent Wife’s (“wife”) costs of the husband’s interlocutory application for relief forming part of his Initiating Application filed on 27 June 2024, as agreed or assessed as to 30 per cent only of those costs.
2.There be no order as to the costs of and incidental to the wife’s application for costs heard and determined on 2 April 2025.
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 Vong & Barma have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property proceedings under Pt VIII of the Family Law Act1975 (Cth) (“the Act”) between the applicant husband (“husband”) and the respondent wife (“wife”).
There is also a parenting aspect to the proceedings however the Court has been informed that the wife is presently located in Country B together with the children of the relationship.
This judgment concerns an application for costs brought by the wife in relation to interlocutory orders sought by the husband and as articulated in his Initiating Application filed on 27 June 2024.
Stated summarily, those orders fell into two broad categories. The first was an order for the appointment of a litigation guardian to conduct the proceedings on behalf of the wife. The second category was a range of interlocutory orders in the nature of injunctions, directed specifically to C Street, Suburb D, a property also known as “C Street”, together with the wife’s interests in companies and under various trusts. The original suite of orders sought leave for the husband to serve copies of the injunctions upon the New South Wales Land Registry Services and for registration of the orders upon the title of C Street.
The proceedings were before the Court on 24 July 2024, again on 22 August 2024 and 14 October 2024.
On 14 October 2024 the parties entered into consent orders which in summary provided for the wife to give 48 hours’ notice to the husband of dealings with her interest in C Street. There was no dispute that the wife’s interest in C Street was limited to 20 per cent, with third parties being entitled to the balance of the legal interest.
The orders that were made on 14 October 2024 made provision for notice, as I have said, but also reserved the question of costs of the husband’s interlocutory application.
On 11 November 2024 the wife filed an Application in a Proceeding seeking an order for payment of costs concerning the interlocutory application in her favour. According to the evidence of her solicitor, she has incurred billed costs for solicitor’s fees, including GST, in the amount of $136,477 and fees for counsel, both senior and junior, totalling $155,406, also inclusive of GST.
The order for costs that the wife presses is that those costs be paid by the husband as agreed or assessed on a party and party basis. I note that despite some earlier suggestion there may be a claim for a full indemnity in respect of those costs, no such order is pressed by the wife.
The Court’s power to award costs rests in s 117 of the Act. The principles applicable to the award of costs in this jurisdiction are well known and discussed innumerable times. The Court’s discretion is wide and is to be exercised judicially (Parke & The Estate of the Late A Parke (2016) FLC 93-748, followed in Atkins & Hunt (Costs) [2017] FamCAFC 131).
The starting point is that each party shall bear their own costs, this is specified in s 117(1). If, however, the Court is of the opinion 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)). The High Court has made clear that this reference is to costs in the conventional sense, that is, for partial indemnification for another’s liability for professional fees and out of pocket expenses reasonably incurred in the litigation.
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.
It is important to emphasise that 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]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 at [41]).
So the question for me to determine is whether there are justifying circumstances for an award of costs in the wife’s favour.
The parties both made reference in their submissions to their financial circumstances. I am not satisfied the evidence is sufficiently clear to demonstrate that either party is in an impecunious situation and it is well known, as senior counsel for the wife submitted, that impecuniosity is no bar to an order for costs.
The real focus of the submissions by the wife was upon the conduct of the husband in prosecuting his claim for interlocutory relief.
In relation to the appointment of a litigation guardian, the wife contended that application should never have been brought because it had no reasonable prospect of success. Counsel for the husband rejected this contention and referred at some length to medical evidence which suggested that the wife, a least in the past, has been afflicted by a range of mental health difficulties which have at times led her to consider, at least, taking her own life. He also pointed to medical evidence where medical practitioners have recorded aspects of the fragility of the psychological state of the wife.
However in my view there was no evidence put forward by the husband, at least that I have been taken to, at any point after the filing of the Initiating Application, which addressed the capacity of the wife to give instructions to any legal practitioners who she may have chosen to retain for the purpose of the litigation.
Counsel for the husband argued that the medical evidence suggested that merely conversing about issues in litigation may have been enough to propel the wife towards self-harm or indeed suicide. However, as was pointed out to counsel for the husband who then appeared on 22 August 2024, it was self-evident that the wife was able to instruct a solicitor and counsel for the purpose of meeting the interlocutory claims of the husband, and indeed she did so for the purpose of meeting the present application for costs.
On 24 July 2024 indeed it was specifically put to the lawyer appearing for the wife that the Court could infer from his presence with an instructing solicitor that the instructing solicitor at least had formed the view the wife was capable of giving instructions.
The husband contended that it was reasonable to bring his application for a litigation guardian in light of the medical evidence to which he pointed, and that he appropriately abandoned it subsequently in circumstances where he formed the view that there was in fact no evidence which could support such an order being made.
I am not persuaded by that argument. In my view, the application for a litigation guardian was inappropriate on the basis of the evidence that was available and it should not have been brought on the basis of that evidence. That is a circumstance I am persuaded which militates in favour of an award of some costs in favour of the wife.
Beyond the issue of the litigation guardian, the parties made competing contentions concerning the interlocutory relief which the husband sought in relation to specifically C Street, but other property interests of the wife.
The wife contended that the ultimate consent position reached by the parties on 14 October 2024 was not materially different from earlier positions that she had offered by way of an undertaking to give the husband 48 hours’ notice of any intention or execution of a contract of sale. I should point out that the husband himself made an offer in very similar terms by proffering a form of undertaking which he said he would accept from the wife for the purpose of resolving the claims to injunctive relief.
Having considered the material, whilst there was some change in position between, for example 22 August 2024 and 14 October 2024, there seems to be no doubt that the ultimate agreement reached, as reflected in the orders of 14 October 2024, was substantially closer to what was proffered by the wife earlier in the proceedings than to the position proffered by the husband.
However, I am not satisfied that that is a circumstance which justifies an order for costs in the wife’s favour. It is in the nature of litigation that where parties are negotiating a regime for the purpose of preserving assets or at least giving a clear or precise regime for notice about disposal of expensive assets, that there can be a degree of forwards and backwards between the parties before they can reach an ultimate conclusion.
I am not satisfied that the wife has demonstrated the conduct of the husband in relation to the injunctive orders he sought was of a nature which justifies an order of costs in her favour. That conclusion also addresses a specific point that I raised with both parties concerning the application of s 95 and s 96 of the Act which requires me to give consideration to whether parties have conducted themselves in accordance with the overarching purpose when exercising any discretion to award costs.
In the course of considering the conduct of the parties I have also made reference to offers in writing which each of them made. It is regrettable that the ultimate position they reached was not the subject of more reasonable and concise consideration before 14 October 2024, but experience dictates that such outcomes are not unusual in litigation whether it be of a matrimonial nature or purely commercial.
This litigation clearly has some way to run and there may be a number of other aspects to the proceedings which will require further consideration.
In the circumstances therefore, I am satisfied that the husband’s approach to the appointment of litigation guardian is the sole circumstance which would warrant an order for costs in the wife’s favour.
Accordingly, I order that the husband pay the wife’s costs of his interlocutory application for relief forming part of his Initiating Application filed on 27 June 2024 as agreed or assessed as to 30 per cent only of those costs.
I make no order as to costs of the interim hearing on 2 April 2025 concerning the application for costs brought by the wife.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 2 April 2025
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