Yeo & Huy (Costs)

[2012] FamCA 758

FAMILY COURT OF AUSTRALIA

YEO & HUY (COSTS) [2012] FamCA 758

FAMILY LAW – COSTS – where applicant had commenced proceedings in Taiwan, before commencing proceedings in Australia – where respondent sought a stay of the proceedings in Australia – where stay granted – where respondent seeks costs on an indemnity basis – where respondent wholly successful in application for stay – where applicant ordered to pay respondent’s costs on a party and party basis.

Civil Proceedings Act 2011 (Qld)

Family Law Act 1975 (Cth)

Judiciary Act 1903 (Cth)
Supreme Court Act 1995 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Henry v Henry (1996) 185 CLR 571
Latoudis v Casey (1990) 170 CLR 534
Skinner & Alfonso-Skinner [2010] FamCA 1108

APPLICANT: Ms Yeo

RESPONDENT: Mr Huy

FILE NUMBER: BRC 5627 Of 2011

DATE DELIVERED: 31 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Chambers

JUDGMENT OF: Murphy J

SUBMISSIONS RECEIVED:

Respondent: 24 April 2012

Applicant: 23 May 2012
Respondent in Reply: 10 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Dante Chen Lawyers

SOLICITOR FOR THE RESPONDENT: Hartley Healey

Orders

IT IS ORDERED THAT

1. The wife pay the husband’s costs of and incidental to the proceedings on a party and party basis as and from the filing of the Amended Response by the husband on 14 October 2011 in an amount agreed in writing between the parties or, failing agreement, to be assessed within 21 days of the date of this order.

2. Payment shall be made by the wife within 14 days of agreement or assessment as the case may be.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5627 of 2011

Ms Yeo

Applicant Wife

And

Mr Huy

Respondent Husband

REASONS FOR JUDGMENT

COSTS

1. On 20 March 2012 I made orders and delivered reasons for judgment, the effect of which was to permanently stay an initiating application filed by the wife on 30 June 2011. Among the orders made on that day were procedural orders relating to any applications for costs.

2. On 24 April 2012 written submissions were received pursuant to those directions seeking that the wife pay the husband’s costs of and incidental to the proceedings for stay, from the date of the filing of an Amended Response by the husband seeking the permanent stay to which I have referred, 14 October 2011. Submission in response were filed by the wife on 23 May 2012 and submissions in reply on 10 July 2012.

3. These reasons relate to that application for costs. The application is made in the alternative; that costs be awarded on an indemnity basis or, otherwise the alternative, on a standard basis.

Background

1. The history of the stay proceedings is recounted in my earlier judgment and will not be repeated here. Salient features of that background for the purposes of the current application include that the parties lived in Taiwan for the whole of the eight years of their marriage save for a period of approximately seven months prior to the wife’s departure for Taiwan upon separation in August 2010 and for a very short period in May 2008.

2. The wife commenced proceedings in Taiwan. She was employed in that country. Proceedings in the Supreme Court in Queensland were initiated by the husband in respect of an amount deposited in Australia. There are no current proceedings in the Queensland Supreme Court. Apart from the money just referred to, and a bond of $750,000 deposited with the Queensland Treasury Corporation as required by the parties’ visa applications, all of the property of the parties or either of them is situated in Taiwan.

3. By way of summary, I made the following findings in granting the stay of the Australian proceedings:

   ·   There was no evidence contrary to the evidence Mr Chen that the orders made by this Court with respect to the parties’ property will not be recognised by the Taiwanese court;

   ·   The parties, and in particular the wife, have a significant connection with Taiwan and always have had;

   ·   Neither the husband, the wife or any of the children are Australian citizens;

   ·   The husband maintains several properties, bank accounts and a motor vehicle in Taiwan and records his place of residence as the former matrimonial home in Taiwan;

   ·   The evidence pointed against the contention of the wife that she intended to return to Australia with the parties’ children;

   ·   The wife owns a home in Taiwan;

   ·   The wife works in Taiwan;

   ·   The children attend school and day-care in Taiwan;

   ·   Having returned to Taiwan, the wife contravened the requirements of her visa;

   ·   The wife informed the Taiwanese court that she does not intend to return to Australia;

   ·   There was greater expense and potential expense and inconvenience if the proceedings were to be conducted in Australia;

   ·   There are already significant proceedings in Taiwan;

   ·   The proceedings for settlement of property in this Court and the proceedings in Taiwan are part of the same controversy because the proceedings in each country “arise out of the same substratum effect”.

The Court’s Power to Order Costs ?

1. The wife contends there should be no order as to costs. Written submissions on her behalf refer to my earlier decision in Skinner v Alfonso-Skinner [2010] FamCA 1108. That case also involved an application for stay and also had reference to the principles outlined in Henry v Henry (1996) 185 CLR 571 and CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.

2. There, it was conceded by both parties that, in a case of the present type, s 117 of the Family Law Act 1975 (Cth) (“the Act”) had no application to the proceedings. I repeat the reasoning in that case in support of a finding that s 117 of the Act is not applicable to substantive proceedings of the present type.

3. In short summary, the reason for that is that proceedings for stay are an exercise by the Court of its accrued equitable jurisdiction or its implied jurisdiction (see CSR Ltd v Cigna, above at 391-392), and are not proceedings “under the Act”. Section 117, which contains the Court’s power to order costs, refers to proceedings “under the Act”. In a case of this type, the source of the Court’s power to award costs is s 79(1) of the Judiciary Act 1903 (Cth) and, relevantly, s 221 of the Supreme Court Act 1995 (Qld) (noting that the Civil Proceedings Act 2011 (Qld) which repeals that Act has not yet commenced operation in relevant respects). The former Act provides:

   (1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

4. Section 221 of the Supreme Court Act 1995 (Qld) provides:

   The Supreme Court shall have power to award costs in all cases brought before it and not provided for otherwise by this section.

5. Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) 681(1) provides:

   Costs of a proceeding, including an application in a proceeding, are in the discretion of the court that follow the event, unless the court otherwise orders.

6. By reference to s 79(1) of the Judiciary Act 1903 (Cth), s 221 of the Supreme Court Act 1995 and the UCPR are “binding” on this Court, it being a court exercising Federal jurisdiction in Queensland and rendered applicable by reason of the non-application of s 117 of the Act.

7. In my view, then, the applicable legislation provides that costs should follow the event unless I order otherwise by reference to the discretion granted by the section. It follows that, in my view, the specific factors enumerated in s 117(2A) of the Act are not, in terms, the provisions which govern the exercise of any costs discretion applicable in this case. As will be appreciated, however, consideration of the type there enumerated may also inform the discretion conferred by s 221 of the Supreme Court Act and r 681, UCPR.

8. A number of submissions are made on behalf of the husband to the effect that the wife knowingly made false allegations during the course of the proceedings including, in particular, that she intended to return to Australia to live with her children. My finding was that the “evidence points against this”. No finding was made of any deceit or dishonesty on the part of the wife. So, too, the husband’s assertions with respect to the wife’s motivation for bringing domestic violence proceedings in Taiwan. The husband contends this Court would be sceptical of those assertions.

9. Submissions are also made pertaining to the financial circumstances of the parties. In that respect it is claimed in submissions on behalf of the wife that she is significantly impecunious. The written submissions on behalf of the husband refer to significant sums that form the basis of a potential claim by the wife, based solely on her assertions rather than the husband’s. I am not persuaded that a limited financial capacity on the part of the wife is a matter that should weigh heavily in the discretion. Those with limited financial capacity cannot litigate with impunity.

10. The husband has enjoyed success in these proceedings. Many of the matters identified in my reasons for judgment insofar as they inform the “clearly inappropriate forum test” identified in Henry v Henry at 592-593 should be seen as largely uncontroversial. The case for stay was a strong one. The wife was advised at all times.

11. In all of the circumstances of this case, I am persuaded that the wife should pay the costs of and incidental to the application for stay.

12. It is further contended on behalf of the husband that costs should be ordered on an indemnity basis.

13. Reference is made to the well known passage of Sheppard J in Colgate-Palmolive Company  v Cussons Pty Ltd (1993) 118 ALR 248. His Honour enumerated a number of matters which, among others, might be considered in making such an award. But, it is also established that orders for indemnity costs can be made upon satisfaction of a particular fact or circumstance that warrant the making of such an order, yet, costs including, in particular, indemnity costs are not awarded as a punishment (Latoudis v Casey (1990) 170 CLR 534 at 543).

14. The application for indemnity costs here is essentially founded on the conduct of the wife in and about the prosecution of proceedings and the assertions made by her within them.

15. I am not prepared to make an order for costs on an indemnity basis. In my view the circumstances of this case do not warrant the making of such an order.

16. I will order, then, that the wife pay the husband’s costs of and incidental to the proceedings on a party and party basis as and from the filing of the Amended Response by the husband on 14 October 2011 in an amount to be agreed in writing between the parties or, failing agreement, as assessed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 31 August 2012.

Associate: 

Date:  31 August 2012