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 which a case is conducted, the Court is not bound by what a counsel says on appeal about how the case was conducted, even if that submission is made against interest. 

6․The entire foundation for the respondent’s application to vary the costs order was contrary to the express findings of the Court in Wu that the claim on which the appellant succeeded was advanced at first instance, notwithstanding the respondent (and the primary judge) viewed that aspect of the case differently, which the Court found to have been in error.  Accordingly, it does not provide a reason to depart from the costs order made on appeal.

7․In reply submissions, the respondent argued further that the appellant’s “primary claim” at trial was a common law claim in debt, which was wholly unsuccessful, and that the claims in equity were “alternative” claims.  That led to a submission that the respondent was ultimately the successful party at first instance.

8․That is a flawed approach to the exercise of the discretion on costs.  To explain why, it is helpful to remind the parties of some general costs principles:

(a) The starting point is that costs are discretionary, pursuant to r 1721(1) of the CourtProcedures Rules 2006 (ACT) (Rules), which applies to civil appeal proceedings by virtue of r 5001.

(b)    The discretion is a very wide one, though it must be exercised judicially, in accordance with established principle and the statutory context: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [35], [65].

(c)    The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9]; Latoudis v Casey (1990) 170 CLR 534 (Latoudis) at 567; Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 (Foots) at [34].

(d)    That principle has been described as the “ordinary rule” that “costs follow the event”: Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33 at [294]. The event is determined by reference to the outcome of the matter in substance: Latoudis at 568; Foots at [34].

(e)    Where there are multiple issues in proceedings, the Court generally does not differentiate between those on which the party succeeded or failed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 (Elite) at [6], cited (albeit indirectly) in Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 (Clarkson) at [10].

(f)    Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Elite at [6].

(g)    Fairness is the touchstone.  The result should be fair having regard to the particular facts and circumstances of the proceeding. “Ultimately, the Court is required to determine the appropriate order in the interests of justice”: Clarkson at [12]. In other words, the Court makes a “broad evaluative judgment of what justice requires”: Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 at [2].

9․Once those principles are understood, it is plain that whether a claim is pleaded and determined first, or in alternative, is not the test.  The Court views the proceeding as a whole.  In this case, insofar as the respondent was concerned, there were four issues: (1) a debt claim; (2) a claim in equity based on unconscionable conduct; (3) a claim in equity based on undue influence; and (4) a defence of laches in answer to each of the equitable claims.

10․The appellant failed on the first issue. The second issue was not necessary to decide.  The appellant succeeded in respect of the third and fourth issues, which were determinative of the outcome and the grant of final relief.

11․Although it is well-established that where a plaintiff succeeds on one cause of action but fails on another, apportionment is available and may be appropriate (see also r 1705 of the Rules), in this case, there was no one clear issue that was either clearly severable or dominant.

12․To the contrary, the fact that the respondent succeeded in defending the debt claim meant that she was, at law, a volunteer and could not resist the undue influence claim extending to her interest in the property in question in these proceedings. 

13․In respect of the unconscionable conduct claim, error at first instance was established on appeal (Wu at [121]). Ultimately, it was unnecessary to decide the claim (Wu (No 2) at [59]). However, many of the facts material to the claim also overlapped with those relevant to the undue influence claim. Thus, although the unconscionable conduct and undue influence claims were legally distinct claims, due to the common factual matrix, the issues were not clearly separable.

14․There being no basis to depart from the order previously made, the Court makes the following order:

(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.  

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: