Antonescu & Antonescu (No 3)

Case [2024] FedCFamC1F 809

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Antonescu & Antonescu (No 3) [2024] FedCFamC1F 809

File number: SYC 1697 of 2023
Judgment of: CAMPTON J
Date of judgment: 28 November 2024
Catchwords: FAMILY LAW – COSTS – Where the wife seeks indemnity costs pursuant to s 117 of the Family Law Act 1975 (Cth) of the substantive s 79 proceedings – Where the husband opposes the making of a costs order, or in the alternative, costs be in accordance with the scale in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the husband failed to comply with his disclosure obligations as codified in the Rules, filing undertakings as to disclosure knowing them to be false – Where the costs of the wife in the litigation were enlarged due to the husband’s disclosure failures – Consideration of the failures of the husband to accept offers of settlement contended to be more favourable to him than the outcome reached at trial – Where a circumstance distinct from a failure to accept a well-cast offer of settlement is the withdrawal by the husband from an executed agreement recorded in writing as proposed consent orders achieved with the benefit of his lawyers at mediation – Where the legally facilitated written agreement reneged upon by the husband was materially more favourable to him than the outcome achieved at trial – Husband ordered to pay the wife’s costs of the substantive proceedings on an indemnity basis from the date of the mediation, discounted taking into account matters unsuccessfully pursued by the wife, in a fixed sum – Husband ordered to pay the wife’s costs of the costs application in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 117(1), 117(2), 117(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, r 12.17(a)
Cases cited:

Antonescu & Antonescu (No 2) [2024] FedCFamC1F 596

Antonescu & Antonescu [2024] FedCFamC1F 468

Browne & Green [2002] FLC 93-115; [2002] FamCA 791

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

Gilmour & Hofte (No 2) [2024] FedCFamC1A 9

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Murray & Murray [1990] FLC 92-173

Oriolo v Oriolo (1985) FLC 91-653; [1985] FamCA 54

Penfold v Penfold (1980) FLC 90-800; [1980] HCA 4

Pennisi & Pennisi (1997) FLC 92-774; [1997] FamCA 39

Sfakianakis & Sfakianakis (2019) 59 Fam LR 419; [2019] FamCAFC 54
Division: Division 1 First Instance
Number of paragraphs: 50
Date of hearing: 18 November 2024
Place: Sydney
Counsel for the Applicant: Mr Othen SC
Solicitor for the Applicant: Long Saad Woodbridge Lawyers
Counsel for the Respondent: Mr Harper
Solicitor for the Respondent: King Cain Solicitors

ORDERS

SYC 1697 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ANTONESCU

Applicant
AND:

MR ANTONESCU

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF…

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Antonescu & Antonescu (No 3) [2024] FedCFamC1F 809
Case
[2024] FedCFamC1F 809
Decision Date

CaseChat Overview and Summary

The case of Antonescu & Antonescu (No 3) involved a wife, Ms Antonescu, seeking indemnity costs against her husband, Mr Antonescu, pursuant to section 117 of the Family Law Act 1975 (Cth). The dispute arose from the substantive s 79 proceedings, where Mr Antonescu opposed the making of a costs order or, alternatively, that costs be in accordance with the scale in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The primary legal issue was whether the circumstances justified the wife's costs being paid on an indemnity basis, considering Mr Antonescu's failure to comply with disclosure obligations and his withdrawal from an executed agreement reached at mediation.

The court found that Mr Antonescu had knowingly filed false undertakings as to disclosure, significantly affecting the litigation's cost and outcome. The husband's reckless conduct included misleading statements and omissions in his financial statements and affidavit, further eroding the integrity of his disclosure undertakings. Additionally, Mr Antonescu withdrew from a written agreement that was more favourable to him than the trial outcome. These findings led the court to order Mr Antonescu to pay the wife's costs of the substantive proceedings on an indemnity basis, discounted for matters unsuccessfully pursued by the wife, in a fixed sum of $450,500. The husband was also ordered to pay the wife’s costs of the costs application in a fixed sum.

Orders

Orders of the court

SYC 1697 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ANTONESCU

Applicant

AND:

MR ANTONESCU

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

28 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Within 90 days of the date of this order the husband pay the wife’s costs fixed in the sum of $450,500.

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.

Background

Background to the litigation

Each party relied upon the primary reasons for judgment (Antonescu & Antonescu (No 2) [2024] FedCFamC1F 596). These reasons assume familiarity with it. Background The husband and the wife commenced cohabitation in mid-1985 and married in 1986. They have two children, both of whom are now adults. The parties separated between October 2014 and upon the husband vacating home in June 2015. The wife commenced the s 79 proceeding in the Federal Circuit and Family Court (Division 2) on 13 March 2023. The parties attended a mediation on 21 November 2023. The matter compromised in writing executed by the parties. Six days later the husband withdrew his agreement to enter consent orders in the terms of the written agreement. On 7 December 2023 the proceeding were transferred to the Federal Circuit and Family Court (Division 1) and were placed in the Major Complex Financial Proceedings list. The trial was heard over four days from 26 to 29 August 2024, with the matter relisted for short submissions on 30 August 2024.THE LAW The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient. The wife bears the onus to establish circumstances which justify departing from the position that each party pay their own costs, for the making of a costs order in her favour. If the wife establishes there are circumstances justifying a costs order, the next consideration is on what basis should costs be paid. The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters. I shall refer to such s 117(2A) matters as are relevant and engaged here.CONSIDERATION After the s 79 determination, each party has the benefit of significant property. The wife received 47.5 per cent of the property of the parties, being $12,301,872, and the husband received 52.5 per cent of that property, being $13,596,805. Their financial circumstances do not militate against the making of a costs order and are a factor to be given some weight. Findings were made as to the husband providing multiple undertakings as to disclosure at times when he was informed by his legal representatives as to the nature and content of those undertakings, that the undertakings as filed were knowingly false, being given while he was aware that the wife would rely on their integrity (at [99]). The wife’s submissions echo from the findings made in the primary reasons, especially as identified in bold:100 At 2.41 pm on the last business day before the commencement of the trial the husband served the wife with a proof of evidence (Exhibit 12) disclosing that on 22 August 2022 he exchanged contracts to purchase “off the plan” the [AJ Street] property for [over $6 million]. The purchase is scheduled to complete in late 2025 or early 2026. He said that his plan was to “on sell” the [AJ Street] property prior to the scheduled settlement.101 The husband said in the proof of evidence: “I have not applied any funds to the purchase of this property. The deposit was funded by way of a Bank Guarantee.” He then went on to say:6. I did not understand that I needed to disclose the existence of this purchase where no money had exchanged hands and settlement would not be occurring until at least late 2025. I only told my solicitor about this purchase on the week beginning 19 August 2024 and provided him with a copy of the contract and bank guarantee on 23 August 2024.7. A copy of the contract and guarantee bond was disclosed to [the wife’s] solicitor on 23 August 2024.102 The husband did not record his interest by way of a chose of action in either of his financial statements. He made no reference to it in his trial affidavit.103 Senior counsel for the husband, on instructions, put to the wife in cross-examination that she had been informed as to the fact of the exchanged contract at a court event in February 2024. The wife denied the contention. On the following day of the trial, the husband, by way of his senior counsel, withdrew any contention as to the wife being aware of his exchanged contract to purchase the [AJ Street] property until 2.41 pm on the last business day before the commencement of the trial.104 During the husband’s cross-examination later that day, he cast aside the concession made by his senior counsel earlier that morning, insisting the wife was aware of the exchanged contract sometime in earlier 2024. After a short adjournment, senior counsel confirmed the accuracy of the concession made that morning and requested that any oral evidence of the husband contrary to the concession be disregarded. The husband’s reckless conduct on this subject matter did him little credit. …110 Following that exchange, and in response to a proposition that he had made disclosures in these proceedings based on his judgment of what he considers to be relevant, he said “[y]es, that’s correct”. I find this response demonstrates, as amplified later in these reasons, the husband’s attitude to disclosure in this litigation. Senior counsel for the husband submitted that this approach to disclosure may have been the husband’s “emotional position”, conceding it is not the “legal position”. It is reflective of the cavalier attitude of the husband to adherence with his obligations codified in ch 6 of the Rules as a litigant in s 79 proceedings.111 I find that the husband has exhibited business and commercial experience over many years. He is not an unsophisticated litigant, having the benefit of accredited family law specialist solicitors acting for him in the litigation. I find the husband attempted to minimise the fact and import of his disclosure failure as to his interest in the exchanged contract in his proof of evidence, that he considers this chose in action to be a valuable resource, and that by way of his lack of timely disclosure, he made a calculated decision to secrete from the wife and the Court a relevant part of his current financial circumstances. He deprived the wife of the opportunity to inform herself of the potential value of this chose in action, or to adequately consider and engage with his financial conduct on this subject matter. I find that he misled the wife and the Court by omission in his financial statement and affidavit, and as to this item, that his first undertaking of disclosure was corrupted. This disclosure failure will be considered in the adjustment to the contribution findings in circumstances where the value of this interest cannot be the subject of determination and hence cannot form a potential item identified in the balance sheet.…124I find that the husband has not complied with his positive obligation to disclose material facts, information, and documents to provide a clear and comprehensive understanding of his relevant financial conduct as to the value of funds that he contributed, and that [Ms KK] contributed, to the acquisition cost of the [Suburb CC] property. I find that he misled the wife and the Court by omission in his affidavit on this subject matter, and that as to this matter, each of his undertakings of disclosure as filed cannot be accepted.…129I find that the husband knew, or ought to have known, that each of the lump sum mortgage repayments for the [Suburb CC] property were important facts going to an issue in the proceeding. I find that the husband’s trial affidavit was misleading by calculated omission as to these facts to achieve a perceived forensic advantage in the proceeding. I find these omissions further erode the integrity of his disclosure undertakings as filed. I do not accept the tenor of his case as to the wife having responsibility to wade through huge volumes of source documents to achieve an accurate understanding as to his financial circumstances. It is not for her to find the needles in the haystack. The husband has the positive obligation to disclose relevant facts, documents, and information to give an accurate portrait of his financial circumstances. (Emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters. I shall refer to such s 117(2A) matters as are relevant and engaged here.CONSIDERATION After the s 79 determination, each party has the benefit of significant property. The wife received 47.5 per cent of the property of the parties, being $12,301,872, and the husband received 52.5 per cent of that property, being $13,596,805. Their financial circumstances do not militate against the making of a costs order and are a factor to be given some weight. Findings were made as to the husband providing multiple undertakings as to disclosure at times when he was informed by his legal representatives as to the nature and content of those undertakings, that the undertakings as filed were knowingly false, being given while he was aware that the wife would rely on their integrity (at [99]). The wife’s submissions echo from the findings made in the primary reasons, especially as identified in bold:100 At 2.41 pm on the last business day before the commencement of the trial the husband served the wife with a proof of evidence (Exhibit 12) disclosing that on 22 August 2022 he exchanged contracts to purchase “off the plan” the [AJ Street] property for [over $6 million]. The purchase is scheduled to complete in late 2025 or early 2026. He said that his plan was to “on sell” the [AJ Street] property prior to the scheduled settlement.101 The husband said in the proof of evidence: “I have not applied any funds to the purchase of this property. The deposit was funded by way of a Bank Guarantee.” He then went on to say:6. I did not understand that I needed to disclose the existence of this purchase where no money had exchanged hands and settlement would not be occurring until at least late 2025. I only told my solicitor about this purchase on the week beginning 19 August 2024 and provided him with a copy of the contract and bank guarantee on 23 August 2024.7. A copy of the contract and guarantee bond was disclosed to [the wife’s] solicitor on 23 August 2024.102 The husband did not record his interest by way of a chose of action in either of his financial statements. He made no reference to it in his trial affidavit.103 Senior counsel for the husband, on instructions, put to the wife in cross-examination that she had been informed as to the fact of the exchanged contract at a court event in February 2024. The wife denied the contention. On the following day of the trial, the husband, by way of his senior counsel, withdrew any contention as to the wife being aware of his exchanged contract to purchase the [AJ Street] property until 2.41 pm on the last business day before the commencement of the trial.104 During the husband’s cross-examination later that day, he cast aside the concession made by his senior counsel earlier that morning, insisting the wife was aware of the exchanged contract sometime in earlier 2024. After a short adjournment, senior counsel confirmed the accuracy of the concession made that morning and requested that any oral evidence of the husband contrary to the concession be disregarded. The husband’s reckless conduct on this subject matter did him little credit. …110 Following that exchange, and in response to a proposition that he had made disclosures in these proceedings based on his judgment of what he considers to be relevant, he said “[y]es, that’s correct”. I find this response demonstrates, as amplified later in these reasons, the husband’s attitude to disclosure in this litigation. Senior counsel for the husband submitted that this approach to disclosure may have been the husband’s “emotional position”, conceding it is not the “legal position”. It is reflective of the cavalier attitude of the husband to adherence with his obligations codified in ch 6 of the Rules as a litigant in s 79 proceedings.111 I find that the husband has exhibited business and commercial experience over many years. He is not an unsophisticated litigant, having the benefit of accredited family law specialist solicitors acting for him in the litigation. I find the husband attempted to minimise the fact and import of his disclosure failure as to his interest in the exchanged contract in his proof of evidence, that he considers this chose in action to be a valuable resource, and that by way of his lack of timely disclosure, he made a calculated decision to secrete from the wife and the Court a relevant part of his current financial circumstances. He deprived the wife of the opportunity to inform herself of the potential value of this chose in action, or to adequately consider and engage with his financial conduct on this subject matter. I find that he misled the wife and the Court by omission in his financial statement and affidavit, and as to this item, that his first undertaking of disclosure was corrupted. This disclosure failure will be considered in the adjustment to the contribution findings in circumstances where the value of this interest cannot be the subject of determination and hence cannot form a potential item identified in the balance sheet.…124I find that the husband has not complied with his positive obligation to disclose material facts, information, and documents to provide a clear and comprehensive understanding of his relevant financial conduct as to the value of funds that he contributed, and that [Ms KK] contributed, to the acquisition cost of the [Suburb CC] property. I find that he misled the wife and the Court by omission in his affidavit on this subject matter, and that as to this matter, each of his undertakings of disclosure as filed cannot be accepted.…129I find that the husband knew, or ought to have known, that each of the lump sum mortgage repayments for the [Suburb CC] property were important facts going to an issue in the proceeding. I find that the husband’s trial affidavit was misleading by calculated omission as to these facts to achieve a perceived forensic advantage in the proceeding. I find these omissions further erode the integrity of his disclosure undertakings as filed. I do not accept the tenor of his case as to the wife having responsibility to wade through huge volumes of source documents to achieve an accurate understanding as to his financial circumstances. It is not for her to find the needles in the haystack. The husband has the positive obligation to disclose relevant facts, documents, and information to give an accurate portrait of his financial circumstances. (Emphasis added)