Wu and Tsiang

[2020] FamCA 612

FAMILY COURT OF AUSTRALIA

WU & TSIANG [2020] FamCA 612

FAMILY LAW – COSTS – Application for costs in respect of injunctive proceedings – Where the respondent was wholly unsuccessful – Order for the respondent to pay costs on a party/party basis – No Order for costs of the instant application.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Wu

RESPONDENT: Mr Tsiang

FILE NUMBER: SYC 1529 of 2016

DATE DELIVERED: 27 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts submitted on behalf of the applicant

SOLICITOR FOR THE APPLICANT: Juris Cor Legal

COUNSEL FOR THE RESPONDENT: Mr Richardson SC submitted on behalf of the respondent

SOLICITOR FOR THE RESPONDENT: Mills Oakley

Orders

1. The husband pay the costs of Ms Wu, on a party/party basis, in respect of the injunctive proceedings at first instance.

2. There be no order as to the costs of the instant application that the husband pay the costs of Ms Wu.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Wu & Tsiang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1529 of 2016

Ms Wu

Applicant

And

Mr Tsiang

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The husband, Mr Tsiang, and the wife, Ms Wu, filed an application for consent orders in relation to issues of parenting and property settlement on 15 March 2016.  Final orders were made by consent on 23 March 2016.

2. On 21 April 2017 the husband filed an Initiating Application, by which he sought to vary the final parenting orders made by consent on 23 March 2016.  On 16 August 2018 the husband filed a Further Initiating Application, by which he sought to vary the final orders for property settlement made on 23 March 2016.  The husband joined as respondents to this application Ms Wu and Mr Cao, who are respectively the father and the uncle of the wife.

3. On 24 August 2018 the husband filed an Application in a Case, by which he sought injunctive orders against the wife, her father Ms Wu and her uncle Mr Cao.  This application came before me on 26 November 2018 and I delivered judgment on 11 December 2018.  Inter alia, I found that "the husband adduced no evidence in support of his application for injunctive orders against the second and third respondents" and I dismissed that aspect of the application.

4. The husband's appeal against the refusal of his application for injunctive relief in relation to Ms Wu was dismissed on 31 July 2019 and he was ordered to pay costs of $25,507.  These costs have been paid by the husband.

5. In an affidavit of 8 January 2020, the husband's solicitor deposed that the husband received a letter dated 22 August 2019, which advised that the Local Court of New South Wales had issued a Writ for Levy of Property in respect of a judgment entered on 15 August 2019.  The husband's solicitor deposed that he received no prior notice of any action against him in the Local Court.  The fact that action was taken against the husband in the Local Court without notice to him was confirmed by an email dated 11 September 2019 from the solicitor for Ms Wu (Exhibit G1 to the affidavit of Ms FF sworn on 8 January 2020).

6. A Response to Application in a Case was filed by Ms Wu on 16 November 2018 and included an application that the husband pay his costs of the injunctive proceedings on an indemnity basis.  On 16 October 2019 Ms Wu filed an Application in a Case, whereby he sought an order that his application for costs of the injunctive proceedings at first instance be listed for hearing.

7. A Registrar rejected this Application in a Case in reliance upon Rule 24.10, which provides that a costs application must be filed within 28 days of the date of the relevant order.  On 15 November 2019 I ordered that the Application in a Case filed by Ms Wu on 16 October 2019 be accepted for filing.  I took the view that Ms Wu had filed his application in time, as his Response to Application in a Case of 16 November 2018 included an order that the husband pay his costs.

8. On 29 November 2019 I made directions for the filing of material in relation to the costs application of Ms Wu.  I directed that the issue of costs then be determined on the papers in chambers.

9. Ms Wu seeks that the husband pay his costs of $22,720.50 in relation to the injunctive proceedings at first instance and a further amount of $3,650 in respect of the present application.  The husband made three alternative proposals in relation to the costs application as follows:

   1.        the application should be reserved to a final hearing;

   2.        the application should be dismissed;

   3.        any costs order should be made on a party/party basis.

Consideration

1. It was submitted on behalf of the husband that costs should be reserved to a final hearing because financial issues between the parties are "very complex" and "Essentially, the Husband contends that he has been "duped" by the Wife, her father and her uncle."  The financial situation between the parties involves unresolved litigation in China, in relation to beneficial ownership of corporate entities in that country.  The husband contends that he is entitled to certain Chinese shareholdings pursuant to the consent orders for property settlement of 15 March 2016.  The husband alleges that the relevant shares are held in the names of Ms Wu and Mr Cao but in fact are property held on trust for himself and the wife.

2. The written submissions on behalf of the husband in the present application read inter alia as follows:

   7.Following the making of the final Orders, in April 2018 Ms Wu and Mr C.'s [sic] shares in the relevant Chinese entities were transferred to agents of the Husband and as such, since that time, the shares have been held on behalf of the Husband pursuant to the final Orders.  However, proceedings have been ongoing in China as instigated by Ms Wu and Mr C. [sic] against the agents of the Husband to cause the shares to be transferred back into their names.

1. Costs applications are to be determined in accordance with section 117 of the Family Law Act 1975 (Cth), which relevantly provides as follows:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (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.

1. No evidence was adduced as to the financial circumstances of the husband or Ms Wu in the present application.  Given the nature of the litigation, I am prepared to infer that neither party is in receipt of a grant of legal aid.

2. At this point in the litigation, there is no evidence that the three respondents acted in collusion with each other to the detriment of the husband.  It would appear that the litigation in China is yet to be completed, thus ownership of the relevant shares rests in the agents of husband.  The reality thus remains that there was no evidentiary basis upon which the injunctive proceedings against Ms Wu and Mr Cao could properly have been instituted by the husband.  The stark fact is that the husband's application against Ms Wu was wholly unsuccessful because he was not in a position to prove his case.

3. In these circumstances, I am persuaded that the husband should pay the costs of Ms Wu of the injunctive proceedings at first instance.  I accept the submissions on behalf of the husband, however, to the effect that such an order should be made on a party/party basis.  I accept the submissions on behalf of the husband to the effect that the quantum of costs sought by Ms Wu appears to be excessive and unreasonable and to involve elements of duplication.

4. I see substance to the submission on behalf of the husband as follows:

   … the applicant for costs has failed to serve any assessment at scale and ... charges appear prima facie beyond those that are reasonably incurred including:

   15.1charges on 10 October 2018 for opening a file;

   15.2drafting a letter on 12 October 2018 (17 units) though the only written communications received by the Husband's solicitor from this time includes service of Notices of Address for Service;

   15.3charges for internal meetings between solicitors of the firm on 23 and 25 October 2018;

   15.4charges for two solicitors of the firm meeting with the client on 25 October 2018.

1. I accept further the submission on behalf of the husband to the effect that unnecessary costs were incurred in exhibiting to affidavits documents such as judgments which are contained within the court file.  I accept further the submission on behalf of the husband that it was unnecessary that copies of the same documents be exhibited to the affidavits of both Ms Wu and his solicitor.

2. It seems to me further that there is substance to the submission on behalf of the husband that the conduct of Ms Wu in the institution of proceedings in the Local Court resulted in additional costs for each of the parties.  I accept the unchallenged evidence of the solicitor for the husband that Local Court proceedings were instituted very shortly after the delivery of judgment by the Full Court and without notice whatsoever to him.  In effect, Ms Wu chose to institute these proceedings without affording to the husband a proper opportunity to comply with the order of the Full Court in respect to costs.

3. For these reasons, I consider that it is just and equitable that there be an order that the husband pay the costs of Ms Wu of the injunctive proceedings at first instance.  I consider that such an order should be on a party/party basis, due to the conduct of Ms Wu in instituting the Local Court proceedings and the apparent unreasonableness of the quantum sought in the application.

4. Accordingly, I will order that the husband pay the costs of Ms Wu on a party/party basis in respect of the injunctive proceedings at first instance.  Having regard to the conduct of Ms Wu;  the apparent unreasonableness of the quantum of costs claimed and the fact that costs of the application for costs itself was sought on an indemnity basis, I will make no order as to the costs of the instant application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 27 July 2020.

Associate: 

Date:  27 July 2020