Wong v Wong (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 24 March 2022
• Neutral Citation: [2022] FCA 269
• Date: 24 March 2022

Federal Court of Australia

Wong v Wong (No 2) [2022] FCA 269

File number(s):	NSD 682 of 2021
Judgment of:	HALLEY J
Date of judgment:	24 March 2022
Catchwords:	COSTS – costs of interlocutory application by second respondent seeking declaration that settlement agreement was binding and enforceable – where applicant’s primary submission was that each party should bear its own costs – where second respondent submitted that applicant and third respondent should pay second respondent’s costs up to and including first hearing day, and third respondent pay second respondent’s costs on an indemnity basis from first hearing day – where third respondent’s primary submission was that as between third respondent and second respondent, each party should pay its own costs, and otherwise applicant should pay second respondent’s costs – second respondent wholly successful – implications of late withdrawal by second respondent of application for an executory order – where each party took different positions as to whether there was a binding and enforceable agreement and the relief that should be granted – appropriate costs order is that applicant pay 75%, and third respondent pay 25%, of the second respondent’s costs of and incidental to the application, as agreed or assessed on usual basis
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules 2011 (Cth) rr 40.01, 40.04
Cases cited:	Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (No 2) [2017] FCAFC 110 Alhalek v Quintiliani trading as Kells Lawyers (No 3) [2021] FCAFC 150 Commissioner of Taxation v Bosanac (No 2) [2022] FCAFC 5 Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Faraday v Rappaport [2007] NSWSC 253 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192; [2015] HCA 35 Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No 2) [2007] FCA 903 Moroccanoil Israel Ltd v Aldi Foods Pty Ltd (No 2) [2017] FCA 1393 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370; [2015] FCAFC 128 Ruddock and Others v Vadarlis and Others (No 2) (2001) 115 FCR 229; [2001] FCA 1865 Smith v Starke, in the matter of Action Paintball Games Pty Ltd (in liq) (No 3) [2016] FCA 40 Summers v Repatriation Commission (No 2) [2015] FCAFC 64 Taylor (liquidator), in the matter of Heading Contractors Pty Ltd (in liq) v Heading (No 2) [2021] FCA 925 Vantage Holdings Pty Ltd v Huang (No 2) (2015) 232 FCR 556; [2015] FCA 185 Wong v Wong [2022] FCA 78
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	65
Date of last submission/s:	28 February 2022
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr S Burchett
Solicitor for the Applicant:	Jason Li Lawyers
Counsel for the First Respondent:	The First Respondent did not provide written submissions
Counsel for the Second Respondent:	Mr R Glasson
Solicitor for the Second Respondent:	Drayton Sher Lawyers
Counsel for the Third Respondent:	Ms S Mirzabegian SC with Mr K Sharma
Solicitor for the Third Respondent:	Corrs Chambers Westgarth
Counsel for the Fourth Respondent:	The Fourth Respondent did not provide written submissions
Counsel for the Fifth Respondent:	The Fifth Respondent did not provide written submissions

ORDERS

		NSD 682 of 2021
BETWEEN:	KOON HING WONG Applicant
AND:	MEI RU WONG First Respondent ; SAMUAL PISCOPO AS TRUSTEE OF THE BANKRUPT ESTATE OF MEI RU WONG Second Respondent ; BANKWEST A DIVISION OF COMMONWEALTH BANK OF AUSTRALIA LTD Third Respondent ; ECHOICE HOME LOANS PTY LTD Fourth Respondent ; EMMA KAMENSKY Fifth Respondent

order made by:	HALLEY J
DATE OF ORDER:	24 March 2022

THE COURT ORDERS THAT:

1. The applicant is to pay 75% of the costs of the second respondent of and incidental to the hearing and determination of the interlocutory application of the second respondent dated 24 August 2021 (interlocutory application), as agreed or assessed.

2. The third respondent is to pay 25% of the costs of the second respondent of and incidental to the hearing and determination of the interlocutory application, as agreed or assessed.

3. There is to be no order as to the costs of the parties with respect to the contest on costs incurred with respect to the hearing and determination of the interlocutory application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

Introduction

1. On 8 February 2022 I made a declaration that a binding and enforceable agreement (Agreement) had been made to settle these proceedings as between the applicant (Mr Wong) and the second respondent (Samuel Piscopo, as trustee of the bankrupt estate of the first respondent) (Trustee). I otherwise dismissed the interlocutory application of the Trustee dated 24 August 2022 (interlocutory application): see Wong v Wong [2022] FCA 78 (Wong).

2. I made further orders on 8 February 2022 providing that, absent a consent position, each party should by no later than 23 February 2022 file and serve a copy of their proposed orders as to costs in respect of the interlocutory application, together with an outline of written submissions in support not exceeding two pages in length, and that costs orders would then be determined on the papers and without a further oral hearing.

3. In addition to seeking the declaration, the interlocutory application had also sought an order that Mr Wong do all such acts and execute all such documents as may be necessary to give effect to the Agreement, including entering into a Deed within seven days of the order being made (Executory Order).

4. The interlocutory application was opposed by Mr Wong. The third respondent (Bankwest) did not wish to be heard on whether the Agreement was binding and enforceable, but did want to be heard on relief and opposed the making of the Executory Order. The fourth and fifth respondents did not wish to be heard on the interlocutory application.

5. The interlocutory application was heard on 6 October 2021. During the course of the hearing Mr Glasson, who appeared for the Trustee, indicated that the Trustee no longer sought the Executory Order. In order to provide Bankwest with an opportunity to address the significance of this change in positon on the...