Agosti & Agosti

Case [2021] FedCFamC1F 72


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Agosti & Agosti [2021] FedCFamC1F 72

File number(s): PAC 4110 of 2020
Judgment of: WILSON J
Date of judgment: 22 September 2021
Catchwords: FAMILY LAW – COSTS – bettering Calderbank offer.  
Legislation:

Family Law Act 1975 ss 13E, 13H, 117(1) 117(2A)

Matrimonial Cause Act 1973 (UK)

Cases cited:

Berrigan Shire Council v Ballerini [2006] VSCA 65

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWSC 583

Calderbank v Calderbank [1975] 3 All ER 333

Cutts v Head [1984] Ch 290

Donnelly v Edelsten (1994) 49 FCR 384

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602

DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251

Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322

Fitzgerald v Fish (2005) 33 Fam LR 123

Hanave Pty Ltd v LFOT Pty Ltd (formerly Jagar Pty Ltd) [1998] FCA 1429

In the Marriage of Hogan (1986) 10 Fam LR 681

Jones v Bradley (No 2) [2003] NSWCA 258

Leichhardt Municipal Council v Green [2004] NSWCA 341

Messiter v Hutchinson (1987) 10 NSWLR 525

MT Associates Pty Ltd v Aqua-Max Pty Ltd [2000] VSC 163

Perry v Comcare (2006) 150 FCR 319

Roberts v Rodier [2006] NSWCA 1084

Semco Developments Pty Ltd v Graham [2005] VSC 268

Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97

White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 910

Division: Division 1 First Instance
Number of paragraphs: 36
Date of last submissions: 13 September 2021
Date of hearing: On the papers
Place: Melbourne
Counsel for the Applicant: Mr P.  Schroder
Solicitor for the Applicant: Rafton Family Lawyers
Solicitor for the Respondent: A B Mezzanotte Lawyers

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

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Agosti & Agosti [2021] FedCFamC1F 72
Case
[2021] FedCFamC1F 72
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CaseChat Overview and Summary

The case of Agosti & Agosti involved a dispute between the applicant, Ms Agosti, and the respondent, Mr Agosti, regarding property settlement and associated costs within the context of family law. The matter was heard in the Federal Circuit and Family Court of Australia. Ms Agosti sought an order for costs under section 117(2) of the Family Law Act 1975, arguing that she had bettered the sum offered in a prior compromise by Mr Agosti. The legal issues the court had to address involved whether Ms Agosti was entitled to costs despite the increase in property value between the time of the offer and the trial, and whether the offer was adequately framed to allow for a proper assessment of the financial risk of proceeding with litigation.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Once it is recognised, as it must be, that the relevant date for the consideration of property and its value is the date of the trial in court or the arbitral hearing in an arbitration, then it must also be recognised that often the value of real estate increases between the date of the rejection of an offer of compromise and the date of a trial in court or a hearing in an arbitration. But the mere fact of that occurrence should not deprive a party of his or her costs where that party has bettered at trial or arbitration the sum that was the subject of the offer of compromise. Where property prices are increasing, it is always possible for an offeror of a compromise to state that the offer is open for a prescribed period but not beyond. If the market increases between the rejection or lapse of that offer, a respondent can hedge his or her risk by putting a different offer of compromise to reflect the movement in property prices. But that is an altogether different proposition to saying that by reason of the increase in property prices a party who, after trial or arbitration, betters the sum that was earlier offered should not have his or her costs. CONCLUSION In my view the applicant has established an entitlement to a costs order under s 117(2) of the Family Law Act 1975. She sought the sum of $36,633.16, a very precise figure. It reflects the computation of costs according to a scale. Whether that computation is accurate is a matter beyond the facts of the present case. The task of assessing costs should be performed by a registrar. Whether that assessment comes to $36,633.16 must await assessment. I direct that the assessment be conducted and completed by 22 November 2021 and paid by 7 December 2021.

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.