FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu & Leong (No 3) [2024] FedCFamC2F 974
File number(s): CAC 1783 of 2013 Judgment of: JUDGE MANSFIELD Date of judgment: 1 August 2024 Catchwords: FAMILY LAW – PROPERTY – Where final orders have not been complied with causing financial loss to the non-defaulting party – Orders made under s 80 of the Family Law Act 1975 to enable the implementation and enforcement of property settlement orders
COSTS – Where the applicant is entitled to a costs order – Indemnity costs sought but insufficient evidence to establish what the wife’s legal obligation as to costs is and the reasonableness of the amount sought on an indemnity basis.Legislation: Family Law Act 1975 (Cth), Part VIII, ss 79A, 80, 117, 117(2A)
Federal Circuit and Family Court of Australia Act 2021, ss 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Part 12.8, rr 1.31, 12.13(4), 12.17(3), 12.28, 12.47(2),
Cases cited: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Marriage of Ravasini (1983) FLC 91–312
Moliere & Van Wyk (1980) FLC 90–911
Pera v Pera (2008) FLC 93–372
Roydon & Roydon [2024] FedCFamC1A 105
Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55
Division: Division 2 Family Law Number of paragraphs: 39 Date of last submission/s: 17 June 2024 Date of hearing: 10 May and 17 June 2024 Place: Canberra Counsel for the Applicant: Dr S Leslie Solicitor for the Applicant: SCB Legal Respondent: Self-represented ORDERS
CAC 1783 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WU
ApplicantAND: MR LEONG
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.Within 28 days from the date of these Orders, the Husband is to pay the Wife $40,443.74.
2.Should the husband fail to comply with Order 1, he is to pay interest on any amount outstanding calculated in accordance with the interest rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date of default until the date of payment in full.
3.The husband is to pay the wife’s costs of and pertaining to the application dated 21 March 2024, on a solicitor and client basis, as assessed pursuant to Part 12.8 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
4.Should the husband fail to comply with any costs assessment order arising out of Order 3, he is to pay interest on any amount outstanding calculated in accordance with the interest rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date of default until the date of payment in full.
5.In the event the husband fails or neglects to pay to the wife…
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CaseChat Overview and Summary
The primary legal issues before the court were whether Mr Leong had breached the prior property settlement order and, if so, what orders should be made to enforce compliance. The court also had to determine the appropriate costs order, including whether Ms Wu was entitled to indemnity costs. The court considered the evidence of non-compliance and the financial implications for Ms Wu. Regarding costs, the court assessed whether there was sufficient evidence to justify an indemnity costs order.
Judge Mansfield found that Mr Leong had indeed failed to comply with the prior order, leading to the issuance of detailed orders to enforce the payment and ensure compliance. The court mandated specific actions for Mr Leong to take if he did not pay the sum within 28 days, including listing and selling a property to satisfy the debt. The court also directed that if the property did not sell within a certain period, it should be auctioned. The court ordered that proceeds from the sale should first cover legal costs, real estate agent’s commission, auction expenses, and any outstanding amounts to Ms Wu before any balance was paid to Mr Leong. In terms of costs, the court found that Ms Wu was entitled to her costs on a solicitor and client basis but did not grant indemnity costs due to insufficient evidence regarding the wife’s legal obligation as to costs and the reasonableness of the amount sought.
The court ordered Mr Leong to pay Ms Wu $40,443.74 within 28 days, with interest accruing on any outstanding amount if he failed to comply. He was also directed to pay Ms Wu's costs on a solicitor and client basis, with interest on any unpaid costs. In the event of further non-compliance, specific steps were outlined for the sale of a property to satisfy the debt. If necessary, the property was to be auctioned with certain conditions. The court further appointed the Registrar to enforce compliance if either party failed to execute necessary documents within seven days.
Orders
Orders of the court
CAC 1783 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS WU
Applicant
AND:
MR LEONG
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1. Within 28 days from the date of these Orders, the Husband is to pay the Wife $40,443.74.
2. Should the husband fail to comply with Order 1, he is to pay interest on any amount outstanding calculated in accordance with the interest rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date of default until the date of payment in full.
3. The husband is to pay the wife’s costs of and pertaining to the application dated 21 March 2024, on a solicitor and client basis, as assessed pursuant to Part 12.8 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
4. Should the husband fail to comply with any costs assessment order arising out of Order 3, he is to pay interest on any amount outstanding calculated in accordance with the interest rate prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date of default until the date of payment in full.
5. In the event the husband fails or neglects to pay to the wife the sums provided in Orders 1 and/or 3, or any interest that has accrued pursuant to Orders 2 and/or 4, within twenty-eight (28) days from the date of default, the Husband is to:
(a) do all such acts and things and shall execute all such deeds, documents and instruments as may be necessary to list the property situate at A Street, Suburb B in the Australian Capital Territory (“the Suburb B Property”) for sale;
(b) engage an Agent as agreed upon between the parties in writing to facilitate the sale of the property or, in the absence of such an agreement for more than fourteen (14) days, the Wife shall propose two agents and the Husband shall nominate one of those agents within seven (7) days of receiving the Wife’s proposal (“the Agreed Agent”);
(c) do all things necessary to list and sell the Suburb B Property for a price as agreed between the parties or failing agreement as recommended by the Agreed Agent;
(d) meet any upfront sale costs or costs of preparing the property for sale as required by or advised by the Agreed Agent.
6. In the event that the Suburb B Property has not sold within six (6) weeks of being listed for sale by private treaty in accordance with Order 5 above, the Husband shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to cause the Suburb B Property to be sold by the Agreed Agent by way of public auction on the following terms:
(a) that such auction take place within six (6) weeks from the date of placing the Suburb B Property for sale by public auction or as soon as practicable thereafter;
(b) that the reserve price for such auction shall be as agreed between the parties or failing agreement for more than seven (7) days, as determined by the Agreed Agent and the Husband shall pay all auction expenses as requested by the Agent as and when they fall due;
(c) that the Husband shall do all such acts and things as may be necessary or recommended by the Agreed Agent to properly present the Suburb B Property for sale and to make it available for inspection by prospective purchasers;
(d) that either party shall be at liberty to bid for the purchase of the Suburb B Property at auction;
(e) that the parties shall attend the auction and if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.
7. Upon completion of the sale of the Suburb B Property in accordance with Orders 5 and/or 6 above the Husband shall distribute the sale proceeds in the following order and priority:
(a) In payment of legal costs, real estate agent’s commission, auction expenses and GST upon the said sale;
(b) In payment to the Wife as is then outstanding pursuant to Orders 1-4;
(c) In payment of the balance to the Husband.
8. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders within seven (7) days, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
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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