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

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Xin & Qinlang (No 9) [2024] FedCFamC1F 811

File number(s): CAC 1782 of 2018

Judgment of: GILL J

Date of judgment: 29 November 2024

Catchwords: FAMILY LAW – Costs – Where the wife seeks indemnity costs following the delivery of final judgment in relation to property proceedings – Where the husband and the second and third respondents were found to have relied upon fraudulent manufactured evidence during the trial – Whether the imposition of indemnity costs would be considered punitive rather than compensatory – Determination that the circumstances warrant an order of indemnity costs

Legislation:
Family Law Act 1975 (Cth) – s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – r 12.17

Cases cited:
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248

Hawkins & Roe [2012] FamCAFC 77

In the Marriage of W P J Munday and H J Bowman (1997) 22 Fam LR 321

Kohan & Kohan (1993) FLC 92-340

Penfold v Penfold (1980) 144 CLR 311

Quickley & Pelissier [2016] FamCAFC 124

Roydon & Roydon [2024] FedCFamC1A 105

Division: Division 1 First Instance

Number of paragraphs: 91

Date of hearing: 15 November 2024

Place: Canberra

Counsel for the Applicant: Mr Lawrence

Solicitor for the Applicant: Longton Legal

Counsel for the First Respondent: Dr Smith

Solicitor for the First Respondent: Dobinson Davey Clifford Simpson

Counsel for the Second and Third Respondents: Mr Mellos

Solicitor for the Second and Third Respondents: Lander & Rogers
ORDERS

CAC 1782 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR XIN

Applicant

AND:
MS QINLANG

First Respondent

MS WANG

Second Respondent

MR B XIN (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:
1.Pursuant to Section 117(2) of the Family Law Act 1975 (Cth) the husband and the second respondent and the third respondent are jointly and severally liable to pay the costs incurred by the wife in the substantive property proceedings, on an indemnity basis and in the fixed sum of $483,444.70 and are to cause such payment to be made within 90 days of these orders, in accordance with a written direction given to them by the wife.
2.The husband and the second respondent and the third respondent are jointly and severally liable pay the cost incurred by the wife of and incidental to this Application in a Proceeding as agreed or as assessed.

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…

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 Xin & Qinlang (No 9)

Details

AGLC: Xin & Qinlang (No 9) [2024] FedCFamC1F 811
Case: [2024] FedCFamC1F 811
Decision Date: 29 November 2024

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia involves a property dispute between Xin and Qinlang, with Wang and another party as additional respondents. The matter revolves around the wife's application for indemnity costs following the final judgment in the property proceedings, given that the husband and the additional respondents were found to have relied on fraudulent evidence during the trial. The court was tasked with determining whether the imposition of indemnity costs would serve a punitive rather than a compensatory purpose in these circumstances.

In addressing the legal issues, the court noted that while the substantive proceedings were tainted by the use of fraudulent evidence, the costs proceedings themselves were not similarly compromised. Therefore, the costs of the substantive proceedings should be met on a party-party basis. The court emphasised that the best method for determining the quantum of these costs is through agreement or assessment. However, given the substantial amount of $483,444.70, the court deemed it appropriate to allow a reasonable period of 90 days for payment.

The court ruled that the husband and the second and third respondents are jointly and severally liable for the wife's costs in the substantive proceedings, to be paid within 90 days in accordance with a written direction from the wife. Additionally, they are jointly and severally liable for the costs of the costs application, either as agreed or as assessed. This decision underscores the court's approach to ensuring that the party found to have acted in bad faith bears the financial consequences of their actions, while also providing a reasonable timeframe for compliance.

Orders

Orders of the court

CAC 1782 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR XIN

Applicant

AND:

MS QINLANG

First Respondent

MS WANG

Second Respondent

MR B XIN (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Pursuant to Section 117(2) of the Family Law Act 1975 (Cth) the husband and the second respondent and the third respondent are jointly and severally liable to pay the costs incurred by the wife in the substantive property proceedings, on an indemnity basis and in the fixed sum of $483,444.70 and are to cause such payment to be made within 90 days of these orders, in accordance with a written direction given to them by the wife.

2. The husband and the second respondent and the third respondent are jointly and severally liable pay the cost incurred by the wife of and incidental to this Application in a Proceeding as agreed or as assessed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The conduct of the costs proceedings are not in themselves tainted in the same manner as the substantive proceedings as to warrant indemnity costs. Rather they should be met on a party-party basis. Despite the burden of such, the best mechanism for establishing that quantum is by agreement or assessment.CONCLUSION Orders will be made for the husband and second and third respondent to hold joint and several liability for the costs of the wife in the substantive proceedings in the sum of $483,444.70. Given the magnitude, a reasonable time for payment will be permitted of 90 days. Orders will also be made for the husband and second and third respondent to jointly and severally meet the costs of this costs application as agreed or as assessed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	CAC 1782 of 2018
Judgment of:	GILL J
Date of judgment:	29 November 2024
Catchwords:	FAMILY LAW – Costs – Where the wife seeks indemnity costs following the delivery of final judgment in relation to property proceedings – Where the husband and the second and third respondents were found to have relied upon fraudulent manufactured evidence during the trial – Whether the imposition of indemnity costs would be considered punitive rather than compensatory – Determination that the circumstances warrant an order of indemnity costs
Legislation:	Family Law Act 1975 (Cth) – s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – r 12.17
Cases cited:	Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Hawkins & Roe [2012] FamCAFC 77 In the Marriage of W P J Munday and H J Bowman (1997) 22 Fam LR 321 Kohan & Kohan (1993) FLC 92-340 Penfold v Penfold (1980) 144 CLR 311 Quickley & Pelissier [2016] FamCAFC 124 Roydon & Roydon [2024] FedCFamC1A 105
Division:	Division 1 First Instance
Number of paragraphs:	91
Date of hearing:	15 November 2024
Place:	Canberra
Counsel for the Applicant:	Mr Lawrence
Solicitor for the Applicant:	Longton Legal
Counsel for the First Respondent:	Dr Smith
Solicitor for the First Respondent:	Dobinson Davey Clifford Simpson
Counsel for the Second and Third Respondents:	Mr Mellos
Solicitor for the Second and Third Respondents:	Lander & Rogers

CAC 1782 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR XIN Applicant
AND:	MS QINLANG First Respondent MS WANG Second Respondent MR B XIN (and another named in the Schedule) Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	29 NOVEMBER 2024