Xin & Qinlang (No 2)

[2025] FedCFamC1A 132

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Xin & Qinlang (No 2) [2025] FedCFamC1A 132

Appeal from:

Xin & Qinlang (No 9) [2024] FedCFamC1F 811

Appeal number:

NAA 358 of 2024

File number:

CAC 1782 of 2018

Judgment of:

ALDRIDGE, WILLIAMS & SMITH JJ

Date of judgment:

25 July 2025

Catchwords:

FAMILY LAW – APPEAL – Appeal from costs order – Where the primary judge ordered the appellants to be jointly and severally liable for the respondent’s costs – Where the primary judge found the appellants had relied on fraudulent documents in prosecuting their claim – Challenges as to weight – Matters raised on appeal not taken before the primary judge – Adequacy of reasons – No error established – Appeals dismissed. 

Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Hedlund & Hedlund (2021) FLC 94-06; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Xin & Qinlang (No 6) [2024] FedCFamC1F 8

Number of paragraphs:

39

Date of hearing:

29 April 2025

Place:

Sydney

Counsel for the First Appellant:

Mr Livingstone

Solicitor for the First Appellant:

Pickering Pendleton

Counsel for the Second and Third Appellants:

Mr Kearney SC

Solicitor for the Second and Third Appellants:

Sunfield Chambers Solicitors & Associates

Counsel for the Respondent:

Dr Smith

Solicitor for the Respondent:

DDCS Lawyers

ORDERS

NAA 358 of 2024
CAC 1782 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR XIN

First Appellant

MS WANG

Second Appellant

MR B XIN

Third Appellant

AND:

MS QINLANG

Respondent

ORDER MADE BY:	ALDRIDGE, WILLIAMS & SMITH JJ
DATE OF ORDER:	25 JULY 2025

THE COURT ORDERS THAT:

1.The appeals are dismissed.

2.The appellants, jointly and severally, will pay the respondent’s costs fixed in the sum of $20,680.86.

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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xin & Qinlang has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE & WILLIAMS JJ:

1. The three appellants are the husband of the respondent and his two parents. On 29 November 2024 a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered the appellants, jointly and severally, to pay the respondent wife’s costs of property proceedings fixed in the sum of $483,444.70.

2. The first appellant and the respondent were engaged in property settlement proceedings. On 1 May 2020, the second and third appellants applied to be joined as parties to the proceedings so that they could prosecute a claim to an equitable interest in a property held by the first appellant and the respondent at Suburb K in the Australian Capital Territory. A significant basis for the claim was an agreement said to be between all four parties.

3. To quote the primary judge:

   40Central to this dispute was exhibit W3, which was a purported agreement in relation to the use of and interests in the Suburb K property, alleged to have been signed in 2008. Exhibit W3 set out that the wife and husband would be able to occupy and use the Suburb K property prior to the second and third [appellants] immigrating to Australia. The title of the property would then be transferred to the second and third [appellants]. This document, if genuine, supported the second and third [appellants’] claim of an equitable interest in the Suburb K property arising under a constructive trust.

   41Various matters, which need not be recited here, led to the conclusion that the documents (there being two iterations) were fraudulent.

4. The claim failed. The reliance on W3 was the primary reason for the indemnity costs order which covered the period of the hearing from 1 May 2020.

5. The first appellant unsuccessfully appealed against the property orders.

6. Although originally just one Notice of Appeal was filed, the second and third appellants ultimately relied on a different Amended Notice of Appeal to the first appellant. It is convenient to commence with it.

   SECOND AND THIRD APPELLANTS’ GROUNDS

   Ground 1: Did the primary judge misstate findings of conduct and thereby give inappropriate weight to them?

7. In the reasons for the property decision, the primary judge described the two iterations of W3 as “fabrications deliberately designed to bolster” the second and third appellants’ claims (Xin & Qinlang (No 6) [2024] FedCFamC1F 8 at [157]).

8. The submission on appeal was that, although W3 may have been fraudulent, the claim to an equitable interest itself was not, so that it could not be said that a fraudulent claim permeated the entire proceedings.

9. Quite frankly, we do not understand the point. If the evidence in support of a claim is fraudulent that must taint the claim itself and its promotion, rendering the entire exercise fraudulent.

10. The primary judge said of this:

    73Whilst a conclusion as to whether proceeding to trial would have been inevitable in any event is reliant on speculation, the place the claim in relation to the Suburb K property occupied in the proceedings is not. Although it is true that a significant number of other matters required resolution during the trial, the pursuit of the Suburb K claim at all points tainted and distorted the litigation. While the fraudulent claim remained on foot, it changed the shape of the pool to which the other contested claims related. It formed an integral part of the whole of each parties’ case, permeating not only the substantive issues of the constitution of the pool, but also of issues relating to credibility that impacted on the resolution of other factual matters. It was a matter that impacted the whole of the dispute.

11. There was no challenge to this reasoning. The fundamental basis of the approach to the hearing by the appellants centred on this false claim which became the focus of the hearing.

12. This ground fails.

    Ground 2: Did the primary judge err as to weight or conflate the issues for consideration?

13. It is of assistance to set out Ground 2 in full:

    That the primary Judge erred, if any order for costs was to be made against the Appellants, in:

    2.1.failing to have proper regard to the relevance of and affording inappropriate weight to the findings made as to conduct at trial and the impact of the same on any costs properly to be allowed against the Appellants;

    2.2.failing to properly consider the proportion of the costs incurred by the Respondent referable to and incurred consequent upon any such conduct on the part of the Appellants; and

    2.3.conflating the issue of whether a costs order ought be made with a consideration of the basis for and scope of any such order;

    in determining the costs to properly be the subject of any order, the basis for any costs order and the quantification of any such order as against the Appellants.

    (Second and third appellants’ Amended Notice of Appeal filed 27 March 2025)

14. There are at least two difficulties with this ground.

15. First, it presumes success on Ground 1 because it proceeds on the basis that not all of the costs incurred by the respondent were incurred by or as a result of fraudulent conduct.

16. However, the second and third appellant also challenge the following finding:

    74Given the impact of the fraudulent claim upon the whole of the proceedings, the nature of the fraudulent conduct upon which it was based, and thereby the egregious manner of conduct of the proceedings by the [appellants], this case falls within the exceptional class of cases for which the appropriate compensation of the wife for her legal costs is that they be met on an indemnity basis, rather than on the party-party basis that is more usually warranted.

17. The first two of the three sub-grounds are challenges to weight (phrased as “affording inappropriate weight” and “failing to properly consider”) without asserting that the outcome was unreasonable or plainly wrong (House v The King (1936) 55 CLR 499). They are not therefore available grounds (Norbis v Norbis (1986) 161 CLR 513; Hedlund & Hedlund (2021) FLC 94-06 at [37]).

18. The last sub-ground presumes that the issue of whether there should be a costs order is a separate enquiry to considering the basis for such an order or its scope. We do not agree. A costs order in a fixed sum is a conclusion reached in the exercise of a very wide discretion, after taking into account all relevant considerations. The obligation is to arrive at such orders as the court considers just. It is one task, not several individual ones.

19. There is no merit in this ground.

    Ground 3: Did the primary judge err by failing to have regard to the reasonableness of the respondent’s costs and their quantification?

20. At the costs hearing the reasonableness of the costs claimed was not in issue. Counsel for the respondent said:

    53.While the appellants sought that any costs order be subject to taxation, they ultimately took no issue with the reasonableness of the amount proposed in the event the Court was minded to fix a lump sum. Rather, the only submission with respect to quantum was not as to the total itself, but whether there should be some apportionment with respect to the amount of that quantum which was referrable to the ‘misconduct’ (a submission which was rejected, as addressed at ground 2 above). Thus, counsel for the husband stated (Transcript: p 48, lines 30 to 35):

    I don’t cavil with the figures in the affidavit of the wife in relation to the costs that she says she incurred after the 2020 date and the 2021 date. And it is useful to your Honour, and to the parties to see what her total costs were after those points in time. I don’t cavil with those. The short point is this, how much of those costs are referable to that part of the case that’s under attack or in question? [Emphasis added]

    (As per original)

    (Respondent’s Summary of Argument filed 22 April 2025)

21. The submissions are therefore not available on appeal (Metwally v University of Wollongong (1985) 60 ALR 68 (“Metwally”); Coulton v Holcombe (1986) 162 CLR 1 (“Coulton”) at 7–8).

22. This ground does not succeed.

    Ground 4: Did the primary judge err by making an order that the appellants were jointly and severally liable for the costs?

23. This is a rather odd ground for the second and third appellants to pursue given that they were the primary promulgators of the fraudulent claim.

24. Nonetheless, the second and third appellants submitted that there were broader issues than the equitable ownership of the Suburb K property, such as the usual s 79 considerations that arose between the first appellant and the respondent.

25. We have already quoted his Honour’s reasons on this point (at [10] above).

26. This led to the conclusion:

    83Further, given the involvement, cooperation and mutual support of the husband and second and third [appellants] in this aspect of conduct of the litigation, it is appropriate that they share the liability on a joint and several basis.

27. In short, the primary judge found that as the fraudulent claim permeated the entire proceedings, joint and several liability was an appropriate outcome. It is to be remembered that it did not cover the entirety of the property proceedings and only the period during which the second and third appellants were involved.

28. Finally, the mere fact that a different order could have been properly made does not establish that the order that was made is erroneous.

29. This ground does not succeed.

    Ground 5: Were the reasons adequate?

30. The obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191 the Full Court adopted the following test (at 78,266):

    The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will … be inadequate if:–

    (a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or

    (b)justice is not seen to have been done.

31. It is apparent from the above and from his Honour’s reasons, that the reasoning process is clearly discernible. The reasons are therefore adequate.

    FIRST APPELLANT’S GROUNDS

    Gound 1: Did the primary judge err by making the costs order on a joint and several basis?

32. We turn now to the first appellant’s Amended Notice of Appeal. The first ground challenges the joint and several aspect of the order. He submitted he was in a different position to the second and third appellants because:

    a.The First appellant was not properly advised during the hearing and was a litigant in person;

    b.The Second and Third [appellants] took a different approach in the proceedings for example seeking at least one adjournment;

    c.The financial circumstances of each [appellant] differs, markedly.

    d.The First Appellant was a necessary party to the proceedings as a party to the marriage.

    (As per original)

    (First appellant’s Summary of Argument filed 31 March 2025, paragraph 9)

33. That may be so, but it does not challenge the central findings at [73] and [83] already quoted. In any event, these points were not raised before the primary judge at the hearing of the costs application and cannot be raised now.

    Ground 2: Was the primary judge’s quantification of costs “inconsistent with authority”?

34. After referring to well known authorities such as Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 and Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, the first appellant submitted that the sum arrived at was not fair and reasonable.

35. It is difficult, if not impossible, to accept this submission given the clear concession made at the hearing, as already noted, that the reasonableness of the claimed costs was not in issue. To do so would, in the words of the Court in Metwally, “be contrary to all principle” (at 71). As Coulton and Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 (at 284) point out, the question is not just one of whether or not the point raised could have been the subject of evidence. There is a public policy in favour of the finality of litigation.

36. This prevents the first appellant from seeking to challenge items of costs, such as administration charges, which he now submits are legally inappropriate when he conceded the costs to be reasonable at the hearing.

    DISPOSITION

37. It follows that the appeals should be dismissed.

38. The appeals have been entirely unsuccessful. The appellants, jointly and severally, will pay the respondent’s costs fixed in the sum of $20,680.86, being the amount calculated in accordance with Sch 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

    SMITH J:

39. I agree.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Williams & Smith.

Associate:

Dated:       25 July 2025