Xin & Qinlang

[2021] FamCA 104

FAMILY COURT OF AUSTRALIA

Xin & Qinlang [2021] FamCA 104

File number(s):	CAC 1782 of 2018
Judgment of:	GILL J
Date of judgment:	9 March 2021
Catchwords:	FAMILY LAW – COSTS – where the wife seeks a costs order against the husband – where the husband was not wholly unsuccessful – application dismissed.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	12
Date of last submission/s:	9 September 2020
Place:	Canberra
Counsel for the Applicant:	Mr Haddock
Solicitor for the Applicant:	Dobinson Davey Clifford Simpson

ORDERS

CAC 1782 of 2018

BETWEEN:

MS QINLANG
Applicant

AND:

MR XIN
First Respondent

MR B XIN
Second Respondent

MS WANG
Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	9 MARCH 2021

THE COURT ORDERS THAT:

1.The wife’s application for costs incidental to the wife’s Application in a Case filed 19 June 2020 is dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J:

1. These proceedings concern a costs application by the Wife in which she seeks that the Husband pay her costs in relation to costs awards that she has successfully obtained against the husband.  Those orders for costs were made on 26 August 2020.

   BACKGROUND TO COSTS APPLICATIONS

2. The Wife’s initial application for costs related to two separate Applications in a Case, one filed 15 May 2020 and one filed 28 May 2020.

3. The judgment of 26 August 2020 noted that the wife had been partially successful in relation to her response to an application in a case filed 15 May 2020, and that the husband should bear half the wife’s costs in relation to that application.  The successful aspect of the wife’s response involved substituting a property in Suburb E for a property in Suburb K in orders that provided for the sale of the property to fund other business expenses. The husband was also required to bear the wife’s costs in relation to his application filed 28 May 2020, wherein the husband unsuccessfully sought a stay of the order in relation to the sale of the Suburb E property.

4. Costs were also sought in relation to the above costs' proceedings against the husband. At 20 August 2020, the day of the hearing of the applications, the results of the above costs application were unknown so the parties did not address on this aspect. As such, on delivery of judgment, a party pursuing costs was permitted to file written submissions within 14 days.  A party who wished to be heard to the contrary also had the opportunity to file written submissions. No other party did so and the matter was reserved to be determined in chambers.

5. The Wife’s submissions filed 9 September 2020 sought the costs of the wife’s costs applications to be paid to her on a party-party basis by the Husband as agreed and failing agreement as taxed.

   PRINCIPLES AND DISCUSSION

6. The principles were recited in the previous costs judgment and need not be repeated here.

7. The wife argues that for two reasons the default position that each party should bear his or her own costs should be departed from.

8. The first is the financial circumstances of the parties, as identified in the previous judgment, and the second is the lack of success the husband enjoyed in relation to the applications (presumably in relation to costs) of the wife.

9. As noted in the previous judgment, each party faces difficult financial circumstances, with the husband facing even more difficult circumstances than the wife. These circumstances point away from a costs order being made against him, although they do not necessarily prevent a costs award being made.

10. In relation to lack of success, while the husband was wholly unsuccessful in relation to costs in respect of the application for a stay of 28 May 2020, he was not wholly unsuccessful in resisting the wife’s claim against him for the costs of the application for the substitution of the properties of 15 May 2020.

11. The two costs matters were argued together.  Although the husband can be taken to have been wholly unsuccessful in relation to one, he was not in relation to the other. The combined circumstance of the mix of wholly unsuccessful and not wholly unsuccessful, in this case, should not lead to a departure from the default position.

12. The applications of the wife for costs will be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       9 March 2021