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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CaseChat Overview and Summary
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.
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