Vu & Ton (No 5)

Case [2023] FedCFamC1F 157

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Vu & Ton (No 5) [2023] FedCFamC1F 157

File number(s): MLC 7739 of 2019
Judgment of: KARI J
Date of judgment: 16 March 2023
Catchwords: FAMILY LAW – APPLICATION FOR INDEMNITY COSTS – Where the application for costs did not comply with Rule 12.13(3) – Where the Court considers it appropriate to dispense with the Rules and grant an extension of time – Where the Court considers it appropriate to make a costs order – Where the Court is satisfied that the circumstances of the case warrant an order for costs in a fixed amount
Legislation:

Family Law Act1975 (Cth) ss, 4, 117, 117(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth), s 76(1)(c)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 1.31, 12.13(3), 12.17, 15.06(1).
Cases cited:

Jess & Jess (No 3) [2023] FedCFamC1A 2

Kazimierczak & Koch [1987] FLC 91-849

Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664

Munday & Bowman (1997) FLC 92-784

Nord & Van [2018] FamCAFC 75; (2018) FLC 93-833

Robinson and Higginbotham (1991) FLC 92-209

Ton & Vu [2020] FamCA 957

Vu & Ton (No 4) [2022] FedCFamC1F

Division: Division 1 First Instance
Number of paragraphs: 75
Date of hearing: 8 February 2023
Place: Adelaide (via video link)
Counsel for the Applicant: Dr Smith
Solicitor for the Applicant: Lander and Rogers
Counsel for the Respondent: Mr Atkinson
Solicitor for the Respondent: Kennedy Partners Lawyers

ORDERS

MLC 7739 of 2019

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

MS TON

Applicant
AND:

MR VU

Respondent

order made by:

KARI J

DATE OF ORDER:

16 March 2023

THE COURT ORDERS THAT:

1.That compliance with Rule 12.13(3)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), by the applicant de facto wife, be dispensed with.

2.That within twenty-eight days, the respondent de facto husband do pay to the applicant de facto wife costs fixed in the amount of $90,000.

3.That the Application in a Proceeding filed 29 November 2022 and sealed 05 December 2022, together with the Response filed 20 February 2023 do otherwise stand 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).

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 Vu & Ton has been approved pursuant…

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AGLC
Vu & Ton (No 5) [2023] FedCFamC1F 157
Case
[2023] FedCFamC1F 157
Decision Date

CaseChat Overview and Summary

The case of Vu & Ton (No 5) involves a dispute between a de facto husband and wife. The de facto wife sought an order for costs, which the court considered. The de facto husband had raised objections to the jurisdiction of the court, which the court found to be futile and hopeless from the outset. The court was required to determine whether an order for costs should be made in favour of the de facto wife and, if so, whether it should be on an indemnity basis.

The court considered the circumstances that might justify an order for indemnity costs, including the de facto husband’s failure to properly engage with the question of jurisdiction and the de facto wife’s submissions that the de facto husband should have known that he had no chance of success. The court found that the de facto husband’s objections to jurisdiction were futile and hopeless from the outset, and that the de facto wife’s submissions had significant merit. The court also considered the helpful summary of the circumstances that might justify an order for indemnity costs, enunciated by Holden CJ in Munday & Bowman.

The court found that an order for costs should be made in favour of the de facto wife, and that it should be on an indemnity basis. The court noted that the de facto husband had been properly advised and should have known that he had no chance of success. The court also found that the de facto husband’s failure to properly engage with the question of jurisdiction was confounding, and that the de facto wife’s submissions had significant merit. The court made an order for costs in favour of the de facto wife on an indemnity basis.

It is appropriate that there be an order for costs in favour of the de facto wife on an indemnity basis. The de facto husband’s objections to jurisdiction were futile and hopeless from the outset, and the de facto wife’s submissions had significant merit. The de facto husband was properly advised and should have known that he had no chance of success. The court’s order for costs on an indemnity basis reflects the seriousness of the de facto husband’s conduct in this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This factor speaks strongly in favour of the making of an order for costs in favour of the de facto wife.Conclusion as to whether a costs order should be made In all of the circumstances that have been identified in these reasons, it is appropriate that there be an order for costs in in favour of the de facto wife.Should the order for costs be made on an indemnity basis? Again, the question of whether an order for indemnity costs should be made in favour of the de facto wife was one that I discussed in my reasons of 5 September 2022. I accordingly do not propose to repeat here those matters, in particular those raised at [175]-[176] of those reasons. In addition, I have had regard to the helpful summary of the circumstances that might justify an order for indemnity costs, enunciated by Holden CJ in Munday & Bowman (1997) FLC 92-784 at 84,600:(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397. (b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra).(c) Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v. Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).(e)An imprudent refusal of an offer to compromise. What is of significance for present purposes is that:(a)On his own case, the de facto husband acknowledged that the de facto wife’s sole purpose for being present in Australia was to meet the needs of the child of the de facto relationship. How this could not have immediately been seen to satisfy the alternate pathway to jurisdiction, as highlighted in the reasons of Johns J as earlier identified, is confounding.(b)Moreover, where the de facto husband was represented by experienced solicitors and counsel, the failure of the de facto husband to properly engage in that question is equally confounding. With these factors in mind, the submissions made on behalf of the de facto wife that the objections to jurisdiction by the de facto husband were futile, “doomed or hopeless from the outset” have significant merit. [2][2] De Facto wife’s written submissions filed 07 February 2023, paragraph 45. Of equally significant merit is the submission made on behalf of the de facto wife that, “properly advised” the de facto husband “should have known that he had no chance of success”.[3][3] De Facto wife’s written submissions filed 07 February 2023, paragraph 45.

Ratio Decidendi

Legal Principle Established

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