FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Xia & Qiu (No 2) [2025] FedCFamC1A 132
Appeal from: Xia & Qiu (No 9) [2024] FedCFamC1F 811
Appeal number: NAA 358 of 2024
File number: CAC 1782 of 2018
Judgment of: ALDRIDGE, WILLIAMS & SMITH JJ
Date of judgment: 25 July 2025
Catchwords: FAMILY LAW – APPEAL – Appeal from costs order –
Where the primary judge ordered the appellants to be
jointly and severally liable for the respondent’s costs –
Where the primary judge found the appellants had relied on
fraudulent documents in prosecuting their claim –
Challenges as to weight – Matters raised on appeal not
taken before the primary judge – Adequacy of reasons – No
error established – Appeals dismissed.
Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family
Law) Rules 2021 (Cth) Sch 3
Cases cited: Banque Commerciale SA, En Liquidation v Akhil Holdings
Ltd (1990) 169 CLR 279; [1990] HCA 11
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119;
[1995] FCA 350
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA
148
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Hedlund & Hedlund (2021) FLC 94-06; [2021]
FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Idoport Pty Ltd v National Australia Bank Ltd [2007]
NSWSC 23
Metwally v University of Wollongong (1985) 60 ALR 68;
[1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Xin & Qinlang (No 6) [2024] FedCFamC1F 8
Xia & Qiu (No 2) [2025] FedCFamC1A 132
Number of paragraphs: 39
Date of hearing: 29 April 2025
Place: Sydney
Counsel for the First
Appellant:
Mr Livingstone
Solicitor for the First
Appellant:
Pickering Pendleton
Counsel for the Second and
Third Appellants:
Mr Kearney SC
Solicitor for the Second and
Third Appellants:
Sunfield Chambers Solicitors & Associates
Counsel for the Respondent: Dr Smith
Solicitor for the Respondent: DDCS Lawyers
Xia & Qiu (No 2) [2025] FedCFamC1A 132 i
ORDERS
NAA 358 of 2024
CAC 1782 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN: LEI XIA
First Appellant
LIQIANG WU
Second Appellant
BEN XIA
Third Appellant
AND: FENG QIU
Respondent
ORDER MADE BY: ALDRIDGE, WILLIAMS & SMITH JJ
DATE OF ORDER: 25 JULY 2025
THE COURT ORDERS THAT:
1. The appeals are dismissed.
2. The appellants, jointly and severally, will pay the respondent’s costs fixed in the sum
of $20,680.86.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Xin &
Qinlang has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
Xia & Qiu (No 2) [2025] FedCFamC1A 132 1
REASONS FOR JUDGMENT
ALDRIDGE & WILLIAMS JJ:
1 The three appellants are the husband of the respondent and his two parents. On 29 November
2024 a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered the
appellants, jointly and severally, to pay the respondent wife’s costs of property proceedings
fixed in the sum of $483,444.70.
2 The first appellant and the respondent were engaged in property settlement proceedings. On
1 May 2020, the second and third appellants applied to be joined as parties to the proceedings
so that they could prosecute a claim to an equitable interest in a property held by the first
appellant and the respondent at Page in the Australian Capital Territory. A significant basis for
the claim was an agreement said to be between all four parties.
3 To quote the primary judge:
40 Central to this dispute was exhibit W3, which was a purported agreement in
relation to the use of and interests in the Page property, alleged to have been
signed on 1 January 2008. Exhibit W3 set out that the wife and husband would
be able to occupy and use the Page property prior to the second and third
[appellants] immigrating to Australia. The title of the property would then be
transferred to the second and third [appellants]. This document, if genuine,
supported the second and third [appellants’] claim of an equitable interest in
the Page property arising under a constructive trust.
41 Various matters, which need not be recited here, led to the conclusion that the
documents (there being two iterations) were fraudulent.
4 The claim failed. The reliance on W3 was the primary reason for the indemnity costs order
which covered the period of the hearing from 1 May 2020.
5 The first appellant unsuccessfully appealed against the property orders.
6 Although originally just one Notice of Appeal was filed, the second and third appellants
ultimately relied on a different Amended Notice of Appeal to the first appellant. It is convenient
to commence with it.
Xia & Qiu (No 2) [2025] FedCFamC1A 132 2
SECOND AND THIRD APPELLANTS’ GROUNDS
Ground 1: Did the primary judge misstate findings of conduct and thereby give
inappropriate weight to them?
7 In the reasons for the property decision, the primary judge described the two iterations of W3
as “fabrications deliberately designed to bolster” the second and third appellants’ claims (Xin
& Qinlang (No 6) [2024] FedCFamC1F 8 at [157]).
8 The submission on appeal was that, although W3 may have been fraudulent, the claim to an
equitable interest itself was not, so that it could not be said that a fraudulent claim permeated
the entire proceedings.
9 Quite frankly, we do not understand the point. If the evidence in support of a claim is fraudulent
that must taint the claim itself and its promotion, rendering the entire exercise fraudulent.
10 The primary judge said of this:
73 Whilst a conclusion as to whether proceeding to trial would have been
inevitable in any event is reliant on speculation, the place the claim in relation
to the Page property occupied in the proceedings is not. Although it is true that
a significant number of other matters required resolution during the trial, the
pursuit of the Page claim at all points tainted and distorted the litigation. While
the fraudulent claim remained on foot, it changed the shape of the pool to
which the other contested claims related. It formed an integral part of the whole
of each parties’ case, permeating not only the substantive issues of the
constitution of the pool, but also of issues relating to credibility that impacted
on the resolution of other factual matters. It was a matter that impacted the
whole of the dispute.
11 There was no challenge to this reasoning. The fundamental basis of the approach to the hearing
by the appellants centred on this false claim which became the focus of the hearing.
12 This ground fails.
Ground 2: Did the primary judge err as to weight or conflate the issues for consideration?
13 It is of assistance to set out Ground 2 in full:
That the primary Judge erred, if any order for costs was to be made against the
Appellants, in:
2.1. failing to have proper regard to the relevance of and affording
inappropriate weight to the findings made as to conduct at trial and the
impact of the same on any costs properly to be allowed against the
Appellants;
2.2. failing to properly consider the proportion of the costs incurred by the
Respondent referable to and incurred consequent upon any such
Xia & Qiu (No 2) [2025] FedCFamC1A 132 3
conduct on the part of the Appellants; and
2.3. conflating the issue of whether a costs order ought be made with a
consideration of the basis for and scope of any such order;
in determining the costs to properly be the subject of any order, the basis for any costs
order and the quantification of any such order as against the Appellants.
(Second and third appellants’ Amended Notice of Appeal filed 27 March 2025)
14 There are at least two difficulties with this ground.
15 First, it presumes success on Ground 1 because it proceeds on the basis that not all of the costs
incurred by the respondent were incurred by or as a result of fraudulent conduct.
16 However, the second and third appellant also challenge the following finding:
74 Given the impact of the fraudulent claim upon the whole of the proceedings,
the nature of the fraudulent conduct upon which it was based, and thereby the
egregious manner of conduct of the proceedings by the [appellants], this case
falls within the exceptional class of cases for which the appropriate
compensation of the wife for her legal costs is that they be met on an indemnity
basis, rather than on the party-party basis that is more usually warranted.
17 The first two of the three sub-grounds are challenges to weight (phrased as “affording
inappropriate weight” and “failing to properly consider”) without asserting that the outcome
was unreasonable or plainly wrong (House v The King (1936) 55 CLR 499). They are not
therefore available grounds (Norbis v Norbis (1986) 161 CLR 513; Hedlund & Hedlund (2021)
FLC 94-06 at [37]).
18 The last sub-ground presumes that the issue of whether there should be a costs order is a
separate enquiry to considering the basis for such an order or its scope. We do not agree. A
costs order in a fixed sum is a conclusion reached in the exercise of a very wide discretion,
after taking into account all relevant considerations. The obligation is to arrive at such orders
as the court considers just. It is one task, not several individual ones.
19 There is no merit in this ground.
Ground 3: Did the primary judge err by failing to have regard to the reasonableness of
the respondent’s costs and their quantification?
20 At the costs hearing the reasonableness of the costs claimed was not in issue. Counsel for the
respondent said:
53. While the appellants sought that any costs order be subject to taxation, they
ultimately took no issue with the reasonableness of the amount proposed in the
event the Court was minded to fix a lump sum. Rather, the only submission
Xia & Qiu (No 2) [2025] FedCFamC1A 132 4
with respect to quantum was not as to the total itself, but whether there should
be some apportionment with respect to the amount of that quantum which was
referrable to the ‘misconduct’ (a submission which was rejected, as addressed
at ground 2 above). Thus, counsel for the husband stated (Transcript: p 48,
lines 30 to 35):
I don’t cavil with the figures in the affidavit of the wife in relation to
the costs that she says she incurred after the 2020 date and the 2021
date. And it is useful to your Honour, and to the parties to see what
her total costs were after those points in time. I don’t cavil with those.
The short point is this, how much of those costs are referable to that
part of the case that’s under attack or in question? [Emphasis added]
(As per original)
(Respondent’s Summary of Argument filed 22 April 2025)
21 The submissions are therefore not available on appeal (Metwally v University of Wollongong
(1985) 60 ALR 68 (“Metwally”); Coulton v Holcombe (1986) 162 CLR 1 (“Coulton”) at 7–8).
22 This ground does not succeed.
Ground 4: Did the primary judge err by making an order that the appellants were jointly
and severally liable for the costs?
23 This is a rather odd ground for the second and third appellants to pursue given that they were
the primary promulgators of the fraudulent claim.
24 Nonetheless, the second and third appellants submitted that there were broader issues than the
equitable ownership of the Page property, such as the usual s 79 considerations that arose
between the first appellant and the respondent.
25 We have already quoted his Honour’s reasons on this point (at [10] above).
26 This led to the conclusion:
83 Further, given the involvement, cooperation and mutual support of the husband
and second and third [appellants] in this aspect of conduct of the litigation, it
is appropriate that they share the liability on a joint and several basis.
27 In short, the primary judge found that as the fraudulent claim permeated the entire proceedings,
joint and several liability was an appropriate outcome. It is to be remembered that it did not
cover the entirety of the property proceedings and only the period during which the second and
third appellants were involved.
28 Finally, the mere fact that a different order could have been properly made does not establish
that the order that was made is erroneous.
Xia & Qiu (No 2) [2025] FedCFamC1A 132 5
29 This ground does not succeed.
Ground 5: Were the reasons adequate?
30 The obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191 the
Full Court adopted the following test (at 78,266):
The adequacy of the reasons will depend upon the circumstances of the case. But the
reasons will … be inadequate if:–
(a) the appeal court is unable to ascertain the reasoning upon which the
decision is based; or
(b) justice is not seen to have been done.
31 It is apparent from the above and from his Honour’s reasons, that the reasoning process is
clearly discernible. The reasons are therefore adequate.
FIRST APPELLANT’S GROUNDS
Gound 1: Did the primary judge err by making the costs order on a joint and several
basis?
32 We turn now to the first appellant’s Amended Notice of Appeal. The first ground challenges
the joint and several aspect of the order. He submitted he was in a different position to the
second and third appellants because:
a. The First appellant was not properly advised during the hearing and was a
litigant in person;
b. The Second and Third [appellants] took a different approach in the proceedings
for example seeking at least one adjournment;
c. The financial circumstances of each [appellant] differs, markedly.
d. The First Appellant was a necessary party to the proceedings as a party to the
marriage.
(As per original)
(First appellant’s Summary of Argument filed 31 March 2025, paragraph 9)
33 That may be so, but it does not challenge the central findings at [73] and [83] already quoted.
In any event, these points were not raised before the primary judge at the hearing of the costs
application and cannot be raised now.
Xia & Qiu (No 2) [2025] FedCFamC1A 132 6
Ground 2: Was the primary judge’s quantification of costs “inconsistent with authority”?
34 After referring to well known authorities such as Beach Petroleum NL v Johnson (No 2) (1995)
57 FCR 119 and Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, the first
appellant submitted that the sum arrived at was not fair and reasonable.
35 It is difficult, if not impossible, to accept this submission given the clear concession made at
the hearing, as already noted, that the reasonableness of the claimed costs was not in issue. To
do so would, in the words of the Court in Metwally, “be contrary to all principle” (at 71). As
Coulton and Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR
279 (at 284) point out, the question is not just one of whether or not the point raised could have
been the subject of evidence. There is a public policy in favour of the finality of litigation.
36 This prevents the first appellant from seeking to challenge items of costs, such as administration
charges, which he now submits are legally inappropriate when he conceded the costs to be
reasonable at the hearing.
DISPOSITION
37 It follows that the appeals should be dismissed.
38 The appeals have been entirely unsuccessful. The appellants, jointly and severally, will pay the
respondent’s costs fixed in the sum of $20,680.86, being the amount calculated in accordance
with Sch 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021
(Cth).
SMITH J:
39 I agree.
I certify that the preceding thirty-nine
(39) numbered paragraphs are a true
copy of the Reasons for Judgment of
the Honourable Justices Aldridge,
Williams & Smith.
Associate: N. Martin
Dated: 25 July 2025