YIM & ZIETH (No.4) - [2020] FCCA 245

FEDERAL CIRCUIT COURT OF AUSTRALIA

YIM & ZIETH (No.4)

[2020] FCCA 245

Catchwords:
FAMILY LAW – Costs – where applicant seeks costs having regard to respondent’s conduct in several aspects of case – general principle that each party to bear own costs – where general principle yields to power to award costs – relevant considerations – power to set the amount of such costs – power to set quantum, determine method for computation or to refer to taxation – quantum set.

Legislation:

Family Law Act 1975 (Cth), ss.4, 117
Federal Circuit Court Rules 2001 (Cth), r.22.01

Cases cited:

Browne v Green (2002) FLC 93-115
Cachia v Hanes (1994) 179 CLR 403
Eldred & Eldred (No.2) [2015] FamCA 188
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123
Hawkins & Roe [2012] FamCAFC 77
I & I (1995) FLC 92-625
In the Marriage of Conroy (1976) 2 Fam LR 11
In the Marriage of Fisher (1990) 13 Fam LR 806
In the Marriage of Greedy (1982) 8 Fam LR 669
In the Marriage of Robinson & Higginbotham (1991) 14 Fam LR 559
In the Marriage of Kelly (No.2) (1981) FLC 91-108
JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119
Kohan & Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Mallett v Mallett (1984) 156 CLR 605
Munday & Bowman (1997) FLC 92-784
Parke & the Estate of the Late A Parke [2016] FamCAFC 248
Penfold v Penfold (1980) 144 CLR 311

Pennisi & Pennisi (1997) FLC 92-774

Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433
Wrensted v Eades [2016] FamCAFC 46
Yim & Zieth (No.3) [2019] FCCA 3404
Yim & Anor & Zieth (No.2) [2019] FCCA 436
Yim & Anor & Zieth [2018] FCCA 3797
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681
Zieth & Yim [2019] FamCAFC 75

Applicant:

MS YIM

Respondent:

MR ZIETH

File Number:

MLC 10467 of 2018

Judgment of:

Judge A Kelly

Hearing dates:

29, 30, 31 May 2019, 24 June 2019

Date of Last Submission:

3 February 2020

Delivered at:

Melbourne

Delivered on:

12 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr D. Carne

Solicitors for the Applicant:

Oakfair Lawyers

Solicitors for the Respondent:

Parke Lawyers, (29, 30, 31 May 2019)

Advocate for the Respondent:

Mr R. Müller (29, 30, 31 May 2019)

In person (24 June 2019, February 2020)

Counsel for the Independent Children's Lawyer:

Ms P.A. Byrne

Solicitors for the Independent Children's Lawyer:

White Cleland

ORDERS

The respondent pay the applicant’s costs of and incidental to:
(a)the respondent’s Application in a Case filed 25 October 2018, fixed in the sum in $3,500;
(b)the respondent’s Application in a Case filed 24 December 2018, fixed in the sum of $4,500;
(c)the mediation, fixed in the sum of $9,760;
(d)the trial of the proceeding heard on 29, 30, 31 May and 24 June 2019 calculated in the sum of $5,000.
fixed in the total…

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 YIM & ZIETH (No.4)

Details

AGLC: YIM & ZIETH (No.4) [2020] FCCA 245
Case: [2020] FCCA 245
Decision Date: 12 February 2020

CaseChat Overview and Summary

In *YIM & ZIETH (No.4)*, Judge A Kelly of the Family Court of Australia considered an application by the applicant for costs against the respondent, arising from various aspects of the litigation. The applicant sought an order for costs based on the respondent's conduct throughout the proceedings.

The central legal issue before the court was whether the general principle that each party bears their own costs should yield to the court's power to award costs against a party. This involved determining the relevant considerations for exercising that power and the appropriate method for setting the quantum of such costs, including the possibility of referring the matter to taxation or fixing the amount directly.

The court reasoned that the respondent's conduct warranted an order for costs. Applying the relevant considerations, the court determined that it was appropriate to fix the quantum of costs rather than refer the matter to taxation. The court ordered that the respondent pay the applicant's costs of and incidental to the respondent's Applications in a Case filed on 25 October 2018 and 24 December 2018, the mediation, and the trial.

The total sum of costs ordered to be paid by the respondent to the applicant was fixed at $22,760. The respondent's own application for costs was dismissed.

Orders

Orders of the court

The respondent pay the applicant’s costs of and incidental to:

(a) the respondent’s Application in a Case filed 25 October 2018, fixed in the sum in $3,500;

(b) the respondent’s Application in a Case filed 24 December 2018, fixed in the sum of $4,500;

(d) the trial of the proceeding heard on 29, 30, 31 May and 24 June 2019 calculated in the sum of $5,000.

fixed in the total sum of $22,760.

The respondent’s application for costs is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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