Zha & Wun (No 7) - [2024] FedCFamC1F 532

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zha & Wun (No 7) [2024] FedCFamC1F 532

File number(s): SYC 4269 of 2020

Judgment of: SCHONELL J

Date of judgment: 9 August 2024

Catchwords: FAMILY LAW – COSTS – Where the third party objector sought a costs order against the wife in relation to a subpoena – Where both costs of compliance and legal costs are sought – Where the third party objector sought costs against the wife on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $1,320

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.34, r 6.35

Cases cited:
Kohan & Kohan (1993) FLC 92-340

Moriarty & Moriarty (2009) 41 Fam LR 336

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

Penfold and Penfold (1980) 144 CLR 311

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

Division: Division 1 First Instance

Number of paragraphs: 26

Date of hearing: 30 July 2024

Place: Sydney

Counsel for the Applicant: Mr Richardson

Solicitor for the Applicant: Pickering Pendleton

Counsel for the Third Party Objector: Mr Butters

Solicitor for the Third Party Objector: ClarkeKann Lawyers

Counsel for the First Respondent: Did not participate

Solicitor for the First Respondent: Did not participate

Counsel for the Second, Third and Fourth Respondents: Did not participate

Solicitor for the Second, Third and Fourth Respondents: Did not participate
ORDERS

SYC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ZHA

Applicant

AND:
MR WUN

First Respondent

MR A WUN

Second Respondent

MS YANG (and another named in the Schedule)

Third Respondent

DD PTY LTD

Third Party Objector

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

9 AUGUST 2024

THE COURT ORDERS THAT:
1.The applicant wife to pay the compliance costs of DD Pty Ltd in relation to a subpoena assessed in the sum of $1,320 such sum to be paid within 28 days of the date of these Orders.
2.The oral application of DD Pty Ltd for legal costs is dismissed.

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…

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 Zha & Wun (No 7)

Details

AGLC: Zha & Wun (No 7) [2024] FedCFamC1F 532
Case: [2024] FedCFamC1F 532
Decision Date: 9 August 2024

CaseChat Overview and Summary

Ms Zha applied to the court for various family law matters, and DD Pty Ltd, a third party objector, sought costs from Ms Zha in relation to a subpoena. DD Pty Ltd sought both compliance and legal costs, either on an indemnity basis or in accordance with the scale, following Ms Zha's failure to comply with the subpoena. The court had to decide whether there were exceptional circumstances warranting indemnity costs and, if not, whether costs should be awarded in accordance with the scale. Schnell J found that the third party objector was not entitled to indemnity costs but was entitled to a fixed sum of costs of $1,320 for compliance, with the application for legal costs dismissed.

In assessing whether there were exceptional circumstances warranting indemnity costs, Schnell J considered the factors under section 117(2A) of the Family Law Act 1975 (Cth). Schnell J found that Ms Zha's failure to comply with the subpoena was not due to exceptional circumstances and, therefore, indemnity costs were not warranted. Instead, Schnell J ordered that Ms Zha pay compliance costs in a fixed sum of $1,320. The court also dismissed the application for legal costs, finding that the circumstances did not warrant an award of legal costs in addition to the compliance costs.

The court's reasoning was based on the assessment of the relevant statutory provisions and case law. Schnell J found that the failure to comply with the subpoena was not due to exceptional circumstances, and therefore indemnity costs were not warranted. Instead, Schnell J ordered that Ms Zha pay compliance costs in a fixed sum of $1,320. The court also dismissed the application for legal costs, finding that the circumstances did not warrant an award of legal costs in addition to the compliance costs.

The court ordered that Ms Zha pay the compliance costs of DD Pty Ltd in relation to a subpoena assessed in the sum of $1,320, to be paid within 28 days of the date of the orders. The oral application of DD Pty Ltd for legal costs was dismissed.

Orders

Orders of the court

SYC 4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ZHA

Applicant

AND:

MR WUN

First Respondent

MR A WUN

Second Respondent

MS YANG (and another named in the Schedule)

Third Respondent

DD PTY LTD

Third Party Objector

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

9 AUGUST 2024

THE COURT ORDERS THAT:

1. The applicant wife to pay the compliance costs of DD Pty Ltd in relation to a subpoena assessed in the sum of $1,320 such sum to be paid within 28 days of the date of these Orders.

2. The oral application of DD Pty Ltd for legal costs is dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 4269 of 2020
Judgment of:	SCHONELL J
Date of judgment:	9 August 2024
Catchwords:	FAMILY LAW – COSTS – Where the third party objector sought a costs order against the wife in relation to a subpoena – Where both costs of compliance and legal costs are sought – Where the third party objector sought costs against the wife on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered in a fixed sum of $1,320
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.34, r 6.35
Cases cited:	Kohan & Kohan (1993) FLC 92-340 Moriarty & Moriarty (2009) 41 Fam LR 336 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold and Penfold (1980) 144 CLR 311 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029
Division:	Division 1 First Instance
Number of paragraphs:	26
Date of hearing:	30 July 2024
Place:	Sydney
Counsel for the Applicant:	Mr Richardson
Solicitor for the Applicant:	Pickering Pendleton
Counsel for the Third Party Objector:	Mr Butters
Solicitor for the Third Party Objector:	ClarkeKann Lawyers
Counsel for the First Respondent:	Did not participate
Solicitor for the First Respondent:	Did not participate
Counsel for the Second, Third and Fourth Respondents:	Did not participate
Solicitor for the Second, Third and Fourth Respondents:	Did not participate

SYC 4269 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ZHA Applicant
AND:	MR WUN First Respondent MR A WUN Second Respondent MS YANG (and another named in the Schedule) Third Respondent
DD PTY LTD Third Party Objector

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	9 AUGUST 2024