FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Agosti & Agosti [2021] FedCFamC1F 72
ORDERS
PAC 4110 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AGOSTI
Applicant
AND: MR AGOSTI
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s party/party costs must be assessed by a registrar of this court, such assessment must be completed by 22 November 2021, and paid by not later than 7 December 2021.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 pseudonyms Agosti & Agosti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
By…
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- Case
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CaseChat Overview and Summary
The court found that the offer was not defective and that the increase in property value between the rejection of the offer and the trial did not negate Ms Agosti’s entitlement to costs if she bettered the sum offered. The court emphasised that the value of real estate can increase between the rejection of an offer and the date of the trial, but this alone should not deny a party their costs if they achieve a better outcome at trial or arbitration. The court held that the offer was clear enough for Ms Agosti to assess the financial risk and that the sum she received in the arbitral award exceeded the amount offered, satisfying the criteria under section 117(2A)(f) of the Family Law Act 1975. The court concluded that Ms Agosti was entitled to a costs order and directed that her party/party costs be assessed by a registrar, with the assessment to be completed by 22 November 2021, and paid by 7 December 2021.
Orders
Orders of the court
PAC 4110 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS AGOSTI
Applicant
AND:
MR AGOSTI
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. The applicant’s party/party costs must be assessed by a registrar of this court, such assessment must be completed by 22 November 2021, and paid by not later than 7 December 2021.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As is apparent from that distillation of authorities prevailing to March 2007, a significant weight of authority recognised all-in Calderbank offers, other authorities highlighted complications with all-in Calderbank offers and other authorities still have pronounced upon the need in a Calderbank offer for the offer to be framed in such a way that the offeree can carefully consider the difference between the offer made and the ultimate relief being sought in all respects, especially as to costs. CONSIDERATION In this case the respondent argued that the offer was defective. I do not agree. The offer conveyed in the 8 December 2020 letter was not expressed to be open for acceptance by a stipulated date. As it happened, that seems to have been unimportant because the evidence revealed that the respondent did not address the letter dated 8 December 2020 at all and instead pressed ahead with the arbitration. It must be inferred that by reason of the offer not having been accepted within a reasonable time for acceptance, the offer lapsed. Either expressly or tacitly, the respondent placed reliance upon the observations of Greenwood J in Perry v Comcare. It was said that the offer dated 8 December 2020 did not clearly and precisely make it plain to the respondent, as at the date of the offer, that the applicant would obtain her taxed costs of the proceeding to the date of that offer. That reasoning resonates with the reasoning of Goldberg J in Dr MartensAustralia Pty Ltd v Figgins Holdings Pty Ltd (No 2)[22] where his Honour held as follows – “If the purpose of a Calderbank letter is to offer to bring litigation to an end it should be couched in such terms as enable the offeree to make a carefully considered comparison between the offer made and the ultimate relief it is seeking in all its aspects. An offer inclusive of costs confuses this issue as it puts the offeree in a position of not being able to determine the appropriate amount to attribute to the money sum it is seeking. Although an estimate can be made of what the offeree’s taxed party and party costs might be at the time of the offer, the offeree is not being offered the opportunity to have those costs assessed by taxation in default of agreement, in addition to being made an offer to settle its claim.”[22] [2000] FCA 602. In Elite Protective Personnel Pty Ltd v Salmon [23] Basten JA rebutted that suggestion. There, his Honour held as follows –If a party in receipt of an offer wishes to know how far the sum offered will go in meeting its costs up to that time, all it has to do is ask its lawyers. In an age where lawyers are required to provide advance estimates of their fees and in circumstances where commercial services are billed on a monthly basis, it is unrealistic to suggest that the recipient of an inclusive offer will be confused or otherwise unable to assess the financial risk of proceeding with litigation.[23] [2007] NSWCA 322 (at [143]). It must not be forgotten that the applicant, in her proposal dated 8 December 2020, was offering to accept a particular sum in compromise and in resolution of the litigation. It was her offer that was silent as to costs. Precisely how she was to apply the sum, if accepted, was a matter for her. But some of the offered sum was to go towards meeting her outstanding legal fees. She and her solicitors knew the quantum of those costs as at the date of the offer. So if the offer had been accepted and the sum paid, the applicant would have been required to pay her own legal fees from that amount. As it transpired, the arbitral award made provision for her to receive a sum certain, $600,000. The amount ordered that she receive eclipsed the sum recorded in her offer of 8 December 2020. In my view, that enlivens s 117(2A)(f) of the Family Law Act 1975. Only one subsection of s 117(2A) needs to be engaged to justify an order being made under s 1117(2).[24] And even though an order may be made under s 117(2) that deviates from the more usual order under s 117(1), any such costs order must be just in all the circumstances.[25] [24] Fitzgerald v Fish (2005) 33 Fam LR 123. [25] In the Marriage of Hogan (1986) 10 Fam LR 681.