Zhu & Xie (No 2) - [2023] FedCFamC1F 615

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhu & Xie (No 2) [2023] FedCFamC1F 615

File number(s): DGC 920 of 2021

Judgment of: STRUM J

Date of judgment: 20 July 2023

Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – Payment of monies sought at interim stage for litigation funding – Where the applicant seeks a payment pursuant to s 79 or pursuant to s 117 of the Family Law Act 1975 (Cth) – Where there is power to make an interim order pursuant to s 117 against the second and third respondents – Where quantum sought exceeds scale costs on a party/party basis – Where such an order would amount to an indemnity costs order – Where it would not be appropriate to make an indemnity costs order, notwithstanding the possible ability of the respondents to tax the amount of such payment after trial – Where the amount sought by the applicant, if ordered by way of partial property settlement pursuant to s 79 is less than the sum the first respondent proposes he receive on a final basis – Order for partial property settlement made.

Legislation:
Family Law Act 1975 (Cth) ss 79, 90AE, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021, updated 28 November 2022 para 5.18

Cases cited:
Bing & Bing (2007) FLC 93-318; [2007] FamCA 418

Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

Division: Division 1 First Instance

Number of paragraphs: 17

Date of hearing: 20 July 2023

Place: Melbourne

Counsel for the Applicant: Ms Tulloch with Mr Gray

Solicitor for the Applicant: CCS Lawyers

Counsel for the First Respondent: Mr Robinson

Solicitor for the First Respondent: O’Sullivan & Ruffilli

Counsel for the Second and Third Respondents: Mr Marchetti

Solicitor for the Second and Third Respondents: Rowan Skinner & Associates Lawyers
ORDERS

DGC 920 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ZHU

Applicant

AND:
MS XIE

First Respondent

MR QUI

Second Respondent

MR BAI

Third Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

20 JULY 2023

THE COURT ORDERS THAT:
1.Within 14 days the First Respondent wife pay, or cause to be paid, to the Applicant husband, by way of partial property settlement, the sum of $320,000.
2.The Applications in a Proceeding filed by the First Respondent wife on 7 June 2023 and by the Second and Third Respondents on 5 July 2023, seeking their costs thrown away by reasons of Applicant husband’s amended statement of claim be adjourned to and consolidated those with the trial of these proceedings.
3.The Applicant husband’s Application in a Proceeding filed 3 May 2023 and the Responses thereto filed by the First Respondent wife and by the Second and Third respondents be otherwise dismissed.

Note: The form of the order is subject…

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 Zhu & Xie (No 2)

Details

AGLC: Zhu & Xie (No 2) [2023] FedCFamC1F 615
Case: [2023] FedCFamC1F 615
Decision Date

CaseChat Overview and Summary

In the case of Zhu & Xie (No 2), the husband, Mr Zhu, applied for a partial property settlement payment from the wife, Ms Xie, or from the second and third respondents, who are the wife's sons from a prior marriage. The application was made at an interim stage of the proceedings, and the husband sought either an order for partial property settlement under section 79 of the Family Law Act 1975 (Cth), or an order for costs under section 117 of the same Act. The wife and the second and third respondents opposed the application and sought its dismissal. The primary legal issue before the court was whether to grant the husband's application for a partial property settlement payment, and if so, on what basis and in what amount. The court considered the Full Court's guidance on making indemnity costs orders and the potential consequences of doing so. Ultimately, the court decided to make an order for a partial property settlement payment of $320,000, pursuant to section 79 of the Family Law Act, rather than an indemnity costs order under section 117.

The court found that the husband's proposed payment amount, if granted as an indemnity costs order, would exceed the scale costs on a party/party basis. The court recognised the Full Court's caution against making such orders, as it would amount to an indemnity costs order. The court also noted that the amount sought by the husband, if granted as a partial property settlement, was less than the sum the first respondent proposed he receive on a final basis. The court took into consideration the wife's concession that it was just and equitable to make an order for a partial property settlement payment at this interlocutory stage. The court emphasised that the source of payment is a matter for enforcement rather than determining whether an order for payment should be made.

The court ordered that Ms Xie pay, or cause to be paid, to Mr Zhu the sum of $320,000 by way of partial property settlement within 14 days. The court also adjourned and consolidated the applications for costs thrown away by reasons of the husband's amended statement of claim with the trial of these proceedings. The court dismissed the husband's application for costs against the wife and the second and third respondents, as well as the wife's and the second and third respondents' applications for their costs to be thrown away.

Orders