Wu v Wu (No 3) - [2024] ACTCA 35

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Wu v Wu (No 3)
Citation:	[2024] ACTCA 35
Hearing Date:	On the papers
Decision Date:	16 December 2024
Before:	Mossop, Baker & McWilliam JJ
Decision:	(1) The costs order made on 14 November 2024 is confirmed, with the respondent to pay the appellant’s costs of the appeal and of the proceedings at first instance.
Catchwords:	COSTS – costs on appeal and at first instance – where appeal allowed – application to vary costs order – whether appellant succeeded on point not argued at first instance – whether respondent substantially successful on appeal
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1705, 1721(1), 5001
Cases Cited:	Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Wu v Wu [2024] ACTCA 8 Wu v Wu (No 2) [2024] ACTCA 29
Parties:	Chin-Sheng Wu ( Appellant) Angela Chien-Kuang Wu ( Respondent)
Representation:	Counsel D Moujalli ( Appellant) M Hassall ( Respondent)
Solicitors Thomson Geer ( Appellant) KJB Law ( Respondent)
File Number:	ACTCA 7 of 2023
Decision Under Appeal:	Court: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 23 December 2022 Case Title: Wu v Wu Citation: [2022] ACTSC 360

The Court:

1․Two judgments have been delivered in this appeal proceeding. The first found that error at first instance had been established: Wu v Wu [2024] ACTCA 8 (Wu). The second dealt with the consequences of the findings of this Court: Wu v Wu (No 2) [2024] ACTCA 29 (Wu (No 2)).
2․One of the orders made in Wu (No 2) was that the respondent pay the appellant’s costs of the appeal and of the proceeding at first instance.
3․The respondent has applied to vary that order, seeking that the appellant pay the costs of the trial and the respondent pay the costs of the appeal. Alternatively, the respondent seeks that each party pay their own costs of the trial and of the appeal. The appellant opposes the application.
4․The basis for the respondent’s application on costs was that the appellant succeeded on a point not run below. In written submissions, the respondent relied in part on a concession made by the appellant during oral argument on the appeal which, following receipt of supplementary submissions on the appeal from each party, was not accepted by the Court, as explained at length in Wu at [78]-[104].
5․The respondent’s submission fails to appreciate that while parties may be bound by the way in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wu v Wu (No 3)

Details

AGLC: Wu v Wu (No 3) [2024] ACTCA 35
Case: [2024] ACTCA 35
Decision Date: 16 December 2024

CaseChat Overview and Summary

The appeal concerned an application to vary a costs order made on 14 November 2024. The appellant, Wu, sought to alter the costs order following an appeal that had been allowed. The respondent, also Wu, had been ordered to pay the appellant's costs of the appeal and of the proceedings at first instance.

The primary legal issue before the court was whether the costs order should be varied, specifically in light of the fact that the appellant had succeeded on a point that was not argued at first instance, and whether the respondent could be considered substantially successful on appeal.

The court confirmed the existing costs order, reasoning that despite the appellant succeeding on a point not raised at first instance, the overall outcome of the appeal favoured the appellant. The court found that the respondent was not substantially successful on appeal, and therefore the original order that the respondent pay the appellant's costs of both the appeal and the first instance proceedings was to be upheld.

Orders

Orders of the court

(1) The costs order made on 14 November 2024 is confirmed, with the respondent to pay the appellant’s costs of the appeal and of the proceedings at first instance.

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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