Yum and WEN and Ors

[2009] FamCA 1178

FAMILY COURT OF AUSTRALIA

YUM & WEN AND ORS [2009] FamCA 1178

FAMILY LAW - PROPERTY - interim costs

APPLICANT: Ms Yum

RESPONDENT: Mr Wen

2^nd RESPONDENT: Mr Dioteses

3^RD RESPONDENT: Ms Dioteses

FILE NUMBER: SYF 3985 of 2005

DATE DELIVERED: 5 November 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 5 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jamison

SOLICITOR FOR THE APPLICANT: Di Lizio & Associates

COUNSEL FOR THE 1ST RESPONDENT:	Mr Levy
SOLICITOR FOR THE 1ST RESPONDENT	Marando Solicitors
COUNSEL FOR THE 2ND RESPONDENT	Ms Winfield
SOLICITOR FOR THE 2ND RESPONDENT	William Chan & Co
COUNSEL FOR THE 3RD RESPONDENT	Mr Santisi
SOLICITOR FOR THE 3RD RESPONDENT	Tsintilas & Associates

Orders

IT IS ORDERED THAT:

1. Subject to Order 3, within 21 days the wife pay or have paid pursuant to order 2 to the 3^rd respondent the sum of $10,000 in relation to costs in respect of the wife’s application against the 3^rd respondent, which case was discontinued by the wife and a further sum of $2,000 by way of costs in relation to this costs application (a total sum of $12,000)

2. Within 14 days the husband pay to the 3^rd respondent by way of partial payment of the costs owed by the wife to the 3^rd respondent the sum of $6,000 and the husband forthwith notify the wife in writing that this payment has been made. 

3. The wife only pay the amount of $6,000 to the 3^rd respondent in the event that the husband complies with Order 2. 

4. The 2^nd respondent’s application for costs against the wife is dismissed. 

5. This matter be adjourned to 10.30am on 1 February 2010.

IT IS NOTED THAT

1. The argument as to whether or not the husband should be responsible as between the husband and wife to pay any or all of the 3rd respondent’s costs will be reserved for argument at the final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Yum & Wen and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3985 of 2005

MS YUM

Applicant

And

MR WEN

Respondent

And

MR DIOTESES

2^nd Respondent

And

MS DIOTESES

3^rd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the second respondent’s application against the wife for costs arising out of the discontinuance of the action against the second respondent, I have to take into account the matters set out in s 117 Family Law Act (“FLA”). The starting point is that each party bears their own costs. In circumstances where proceedings are discontinued against a third party, it is often the case that a party to the marriage is at risk as to having a costs order made under s 117 FLA, but in order for that to happen I have to take into account the matters set out in s 117(2A) FLA.

2. I note the matters that are set out in the second respondent’s written submissions; the matters put to me by Ms Winfield and the matters set out in the applicant’s written response by way of submissions. 

3. Technically the 2^nd respondent can claim the wife was “wholly unsuccessful” against her.

4. However, central to the wife joining the 2^nd respondent was the claim that her husband (the 2^nd respondent’s brother) had transferred valuable stock to his sister.  The 2^nd respondent’s position in relation to this claim is of central relevance to this cost application.  In fact, the main matter that I take into account when determining this matter is the conduct of the parties in these proceedings.  As I pointed out in discussions, when the matter was before me on 8 April 2009, I had a discussion with the lawyer then representing the second respondent, Mr Fernando, about the business as follows:

   His Honour:  “Do you accept a large amount of stock was transferred from [B] to [F]?” 

   Mr Fernando:  “I have no instructions to dispute it at this stage, your Honour”. 

   His Honour:  “Well, you had a while to get instructions.” 

   Mr Fernando:  “I certainly have.” 

   His Honour:  “I take that almost certainly as a yes.” 

   Mr Fernando:  “I think it is a yes, with a very minor qualification.” 

   His Honour:  “Well, it is alleged that $300,000 worth of stock came across, what do you say about that?” 

   Mr Fernando:  “Again, with a minor qualification I would agree.” 

   His Honour:  “What’s the minor qualification?” 

   Mr Fernando:  “That I don’t have precise instructions or precise make-up of the $300,000.”

5. The court is entitled to rely upon a lawyer who purports to have instructions from a client in the conduct of litigation and if, in the context of this costs application, proceedings have been conducted by the second respondent in that way then I am entitled to take that conduct into account.  As I have indicated, if the second respondent believes that her previous lawyer acted totally inappropriately, there are other remedies that she has, but in my view, her lawyer’s conversation with me disentitles the 2^nd respondent from seeking costs.

6. The proceedings were discontinued against the second respondent as a result of the concession that was made.

7. It maybe that the 2^nd respondent now wishes to give other evidence about what happened with the stock.  That may be a matter of future consideration if her brother calls her as a witness in his case against the wife, but it is not relevant to the 2^nd respondent’s costs application against the wife. 

8. There is nothing in the other matters set out under s 117(2A) FLA which would lead me to make a decision to depart from the normal rule; that is, that each party to the proceedings, under the Act, will bear their own costs. So I dismiss the second respondent’s application against the applicant wife for costs.

I certify that the preceding six (6) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  1.12.2009