YAO & MEI - [2020] FamCA 1117

FAMILY COURT OF AUSTRALIA

YAO & MEI

[2020] FamCA 1117

FAMILY LAW – COSTS – Where application was made by the husband seeking a costs order that the wife pay his cost of and incidental to the Initiating Application filed by the wife on 19 September 2017 on a party/party basis in the sum of about $128,000 – Where costs were awarded in a fixed sum

Family Law Act 1975 (Cth) s 117

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & Ors [2005] FamCA 158
Cachia v Hanes (1994) 179 CLR 403
Pearson & Pearson [2020]FamCA 329

APPLICANT:

Mr Yao

RESPONDENTS:

Ms Mei

FILE NUMBER:

SYC

2897

2017

DATE DELIVERED:

14 October 2020

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Munk

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

The respondent wife, Ms Mei shall within ninety (90) days from the date of this order, pay to the applicant husband Mr Yao legal costs in the sum of $76,800.

IT IS DIRECTED

Interest shall accrue on such costs orders in accordance with the Rules under the Family Law Act1975 (Cth) as and from ninety (90) days from the date of this order, unless such costs are paid.
A copy of the reasons for these orders be taken out, settled and placed on the Court file.

IT IS NOTED

These costs include the costs of the costs application.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 2897 of 2017

MR YAO

Applicant

And

MS MEI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

Ms Mei (‘the wife’) and Mr Yao (‘the husband’) and Ms Zhou, (‘the husband’s mother’), were involved in proceedings in the Family Court (‘the substantive proceedings’), which were heard by me on 6, 7, 8 and 9 April 2020, and where I published Reasons for Judgment (‘the Reasons’) on 8 July 2020 and made orders. Those Reasons and the orders that flowed from them were before me today in a costs application by the husband for an order that the wife pay his costs on a party/party basis in the sum of about $128,000. There…

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 YAO & MEI

Details

AGLC: YAO & MEI [2020] FamCA 1117
Case: [2020] FamCA 1117
Decision Date

CaseChat Overview and Summary

In *Yao & Mei* [2020] FamCA 1117, the Family Court of Australia considered a costs application made by the husband, Mr Yao, seeking an order that the wife, Ms Mei, pay his costs of and incidental to the Initiating Application filed by the wife on 19 September 2017. The husband sought costs on a party/party basis in the sum of approximately $128,000. The wife, who was unrepresented in the costs proceedings, sought that the applications be dismissed and that each party bear their own costs.

The court was required to determine whether costs orders should be made against the wife and, if so, whether those costs should be awarded as a lump sum payment. In making this determination, the court was guided by section 117 of the *Family Law Act 1975* (Cth), which outlines the court's power to make costs orders and the factors to be considered. These factors include the financial circumstances of the parties, their conduct in relation to the proceedings, whether a party has been wholly unsuccessful, and any offers to settle.

Justice Benjamin applied the principles of section 117(2A) of the *Family Law Act 1975* (Cth), noting that no single factor dictates the outcome and that the court has a broad discretion. Having considered the evidence and submissions, including the wife's unrepresented status, the court found that circumstances justified making a costs order. The court ordered that the respondent wife pay the applicant husband legal costs in the sum of $76,800, payable within ninety days. Interest was to accrue on this sum from ninety days after the order date unless paid. These costs were to include the costs of the costs application itself, and the court noted that it was reasonable to engage counsel for the costs application.

Orders