FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Xia (No 7) [2024] FedCFamC1F 627
File number(s): SYC 196 of 2017 Judgment of: HARPER J Date of judgment: 18 September 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband files enforcement application in respect of costs order made against the wife in 2018 requiring payment of costs to the husband as agreed or assessed on a party and party basis – Where the final orders in the substantive proceedings require the husband to pay the wife $9,284 – Where the husband seeks the amount to be paid by him be offset against the amount owed by the wife pursuant to the 2018 costs order – Where the husband did not have his costs assessed and quantified by a registrar pursuant to Div 12.8.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“2021 Rules”) – Whether the 2018 costs order constitutes an enforceable “obligation to pay money” under the 2021 Rules – Where the absence of assessment of the husband’s costs is not an insuperable obstacle to ordering a set off – Power of the Court to make orders declaring amount owed under an obligation pursuant to r 11.07 of the 2021 Rules – Where the amount owed by the husband is set off against the amount owed by the wife, quantified in the same amount of $9,284 – Where there is no balance to be paid by the wife.
FAMILY LAW – JURISDICTION – Inherent jurisdiction to order set off of liquidated sum against unliquidated sum – Distinction between costs order and judgment for damages is unimportant to discretion to order set off – Where it is unnecessary to decide if the Court should exercise equitable jurisdiction to order set off.
Legislation: Family Law Act 1975 (Cth) Pt VIII, s 105
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Family Law Rules2004 (Cth) (repealed) Div 19.6.2, rr 19.21, 19.22
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) Pt 11.1 and Pt 12, Div 12.8.2, rr 1.04(1), 1.05(1), 11.01, 11.07
Cases cited: Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd (2006) 230 ALR 184; [2006] NSWSC 560
Collins & Olsthoorn (2005) FLC 93-216; [2005] FamCA 138
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56
Haines & Rader (No 5) [2023] FedCFamC1F 132
Hunter & Hunter [2019] FamCA 40
Lahoud v Lahoud [2012] NSWSC 284
Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd [2011] NSWSC 1567
McDonald and McDonald (1976) FLC 90-047; [1976] FamCA 29
McMillan & McMillan [2016] FamCA 387
Newett & Newett (No 8) (2023) FLC 94-128; [2023] FedCFamC1A 7
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11
Wei & Xia (2024) FLC 94-186; [2024]…
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- Wei & Xia (No 7) [2024] FedCFamC1F 627
- Case
- [2024] FedCFamC1F 627
- Decision Date
CaseChat Overview and Summary
The court found that the absence of a formal assessment of the husband’s costs did not necessarily preclude a set-off, given the overarching purpose of the Family Law Act and the rules. The court considered the inherent jurisdiction to order a set-off of liquidated sums against unliquidated sums and noted that the distinction between a costs order and a judgment for damages did not affect the discretion to order a set-off. The court determined that it was not necessary to decide if it should exercise equitable jurisdiction to set off the wife’s obligation to pay costs against the husband’s liability to pay her $9,284. Instead, the court found that it had the inherent jurisdiction to do so, guided by principles discussed in Lahoud and relevant authorities.
Ultimately, the court concluded that the absence of an assessment of the husband’s costs was not an insurmountable obstacle to ordering a set-off, and the court had the discretion to do so. Additionally, the court interpreted the powers under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to include the power to declare the amount owed by the wife to the husband, regardless of the absence of an assessment by a registrar. Although the husband's delay in seeking an assessment was a factor against a set-off, the court found it insufficient to deny the husband's request, especially given the substantial court resources consumed by these proceedings. The court ordered a set-off of $9,284, discharging the husband's obligation to pay the wife that amount.
ORDERS:
1. The wife is obliged to pay $9,284 to the husband under the 2018 costs order.
2. The wife's obligation under Order 1 is set off against the husband's obligation to pay $9,284 to the wife.
3. The husband's obligation under Order 5(g) dated 16 August 2023 is discharged by the set-off in Order 2.
4. The husband's Amended Application – Enforcement is dismissed with no order as to costs.
Orders
Orders of the court
SYC 196 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS WEI
Applicant
AND:
MR XIA
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT DECLARES THAT:
1. The Applicant Wife (“wife”) is obliged to pay the total amount of $9,284 to the Respondent Husband (“husband”) to comply with Order 2 made on 15 May 2018.
THE COURT ORDERS THAT:
2. The obligation of the wife stipulated in Order 1 is hereby set off against the obligation of the husband to pay $9,284 pursuant to Order 5(g) dated 16 August 2023.
3. The obligation of the husband stipulated in Order 5(g) dated 16 August 2023 is discharged by reason of Order 2 above.
4. The Amended Application – Enforcement filed by the husband on 19 July 2024 is otherwise dismissed, with no order as to costs.
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
Ratio Decidendi
Legal Principle Established
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