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

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