FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Wei & Xia (No 2) [2024] FedCFamC1A 138
Appeal from: Wei & Xia (No 5) [2023] FedCFamC1F 679 Appeal number: NAA 246 of 2023 File number: SYC 196 of 2017 Judgment of: ALDRIDGE, HOGAN AND KARI JJ Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – APPEAL – COSTS – Application for indemnity costs – Where the appellant was wholly unsuccessful – Where the cross-appeal was abandoned at the appeal hearing – Not all claimed costs justifiable – Appellant to pay the first respondent’s and second and third respondents’ costs in fixed sums. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.19, 12.13, 13.53, Sch 3
Cases cited: Beckham & Quarrington [2024] FedCFamC1A 136 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Conrad & Conrad (2020) 61 Fam LR 301; [2020] FamCAFC 255
E Pty Ltd & Zunino (No 2) [2020] FamCAFC 272
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Wei & Xia [2024] FedCFamC1A 65
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Number of paragraphs: 52 Date of last submission: 23 May 2024 Date of hearing: Determined in chambers on the papers Place: Sydney Solicitor for the Appellant: Broaden Legal Solicitor for the First Respondent: Metro North Legal Counsel for the Second Respondent: Mr Reynolds Solicitor for the Second Respondent: MLH Lawyers The Third Respondent: Represented by Mr B Xia (the Second Respondent) ORDERS
NAA 246 of 2023
SYC 196 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WEI
Appellant
AND: MR XIA
First Respondent
MR B XIA
Second Respondent
MS SIANG (DECEASED)
Third Respondent
ORDER MADE BY:
ALDRIDGE, HOGAN AND KARI JJ
DATE OF ORDER:
20 AUGUST 2024
THE COURT NOTES THE AGREEMENT OF THE PARTIES THAT:
A.In January 2024, the second respondent was appointed by the Supreme Court of New South Wales as the administrator of the late estate of the third respondent.
AND THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to r 3.19(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the second respondent, in his capacity as the administrator of the deceased estate of Ms Siang, be substituted as the third respondent.
2.Pursuant to r 3.19(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in respect of costs, the application for costs in the Application in a Proceeding filed on behalf of the second and third respondents on 14 September 2023 that the evidence in support of the costs application and the second respondent’s written submissions in support of the same be taken to be repeated and relied upon by the third respondent mutatis mutandis in support of an application for costs by the third respondent.
AND THE COURT FURTHER ORDERS THAT:
3.If and when the estate of the late Ms…
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CaseChat Overview and Summary
The appeal court examined the submissions and evidence provided by the parties regarding the costs incurred. It noted that the appellant was unsuccessful in her appeal and that the cross-appeal had been abandoned. The court found that not all the costs claimed by the respondents were justifiable. Consequently, the court ruled that the appellant should pay fixed sums of the respondents' costs. The court also noted the agreement of the parties regarding the substitution of the administrator of the deceased estate as the third respondent and ordered that costs be deducted from the estate before any remaining funds were paid to the appellant.
The court's decision highlighted the importance of the principle that the unsuccessful party in litigation should bear the costs of the successful party. Given the appellant's lack of success and the abandonment of the cross-appeal, the court ordered that the appellant pay fixed sums of the first and third respondents' costs. The order also provided for the deduction of these costs from the estate before any remaining funds were paid to the appellant.
The court's orders were that the second respondent, in his capacity as the administrator of the deceased estate, be substituted as the third respondent. It further ordered that if and when the estate complied with the primary judge's order, it should first deduct $68,000 as the costs of the appeal payable by the appellant, then pay $16,000 as the first respondent's costs of the appeal, before paying the balance to the appellant.
Orders
Orders of the court
NAA 246 of 2023
SYC 196 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS WEI
Appellant
AND:
MR XIA
First Respondent
MR B XIA
Second Respondent
MS SIANG (DECEASED)
Third Respondent
ORDER MADE BY:
ALDRIDGE, HOGAN AND KARI JJ
DATE OF ORDER:
20 AUGUST 2024
THE COURT NOTES THE AGREEMENT OF THE PARTIES THAT:
A. In January 2024, the second respondent was appointed by the Supreme Court of New South Wales as the administrator of the late estate of the third respondent.
AND THE COURT ORDERS BY CONSENT THAT:
1. Pursuant to r 3.19(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the second respondent, in his capacity as the administrator of the deceased estate of Ms Siang, be substituted as the third respondent.
2. Pursuant to r 3.19(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in respect of costs, the application for costs in the Application in a Proceeding filed on behalf of the second and third respondents on 14 September 2023 that the evidence in support of the costs application and the second respondent’s written submissions in support of the same be taken to be repeated and relied upon by the third respondent mutatis mutandis in support of an application for costs by the third respondent.
AND THE COURT FURTHER ORDERS THAT:
3. If and when the estate of the late Ms Siang complies with Order 8 made by the primary judge on 16 August 2023, it shall first deduct from the sum being paid and retain for itself $68,000 as the costs of the appeal payable by the appellant and, secondly, pay to the first respondent $16,000 as his costs of the appeal before paying the balance to the appellant.
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
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Ratio Decidendi
Legal Principle Established
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