Argyropoulos & Argyropoulos and Ors - [2007] FamCA 323

FAMILY COURT OF AUSTRALIA

ARGYROPOULOS & ARGYROPOULOS AND ORS

[2007] FamCA 323

FAMILY LAW – Costs - Indemnity costs

Family Law Act 1975 (Cth)

Reserved Judgment
(Costs)
Delivered in Chambers

Applicant:

Mr Argyropoulos

Respondent:

Mrs Argyropoulos

Second Respondent

Nostalgia Pty Ltd

Third Respondent

Mr Nissiopoulos

Fourth Respondent

Mrs Nissiopoulos

File Number:

MLF

603

2006

Date Delivered:

18 April 2007

Place Delivered:

Melbourne

Judgment of:

Carter J

Hearing Date:

By Written Submissions
concluding 13 April 2007

Address for Service

Solicitor for the applicant:

Maria Barbayannis & Co

Solicitor for the Respondent:

Leo Dimos & Associates

Solicitor for the Third & Fourth Respondents

Ms Joanne Alexiou

Orders

That the husband pay the wife’s costs of and incidental to the husband’s Form 2 Application in a Case filed 21 August 2006, including the costs reserved 18 September 2006, 31 October 2006 and 15 December 2006, such costs to be assessed on an indemnity basis in default of agreement as to quantum.
That the husband pay the wife’s costs of preparation of the submissions for costs filed on her behalf, such costs to be assessed on a party/party basis in default of agreement as to quantum.
The Court certifies for counsel’s attendance on 31 October 2006.
Payment of the aforesaid costs be stayed until the earlier of the conclusion of the final hearing in this proceeding or settlement of this proceeding.
By Consent As between the Husband And the Third And Fourth Respondents
That the husband pay the third and fourth respondents’ costs of and incidental to the husband’s Form 2 Application in a Case filed 21 August 2006, including costs reserved on 18 September 2006, 31 October 2006 and 15 December 2006, such costs to be assessed on a party/party basis in default of agreement as to quantum.
The Court certifies for counsels’ attendance on 31 October 2006 and 15 December 2006.
The payment of the aforesaid costs be stayed until the earlier of the conclusion of the final hearing in this proceeding or settlement of this proceeding.
That the Minutes of Consent Orders signed by the solicitor for the husband and the solicitor for the third and fourth respondents remain on the Court file.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 603 of 2006

Mr Argyropoulos

Applicant

and

Mrs Argyropoulos

Respondent

and

Nostalgia Pty Ltd

Second Respondent

and

Mr Nissiopoulos

Third Respondent

and

Mrs Nissiopoulos

Fourth Respondent

REASONS FOR JUDGMENT

(Costs)

On 15 December 2006 I delivered a reserved judgment and made orders in this case.
Paragraph 2 of those orders provided:
“2.That there be liberty to make an application for costs of and incidental to these proceedings by filing written submissions within 56 days hereof; and
(a)the respondent to any such application have a further 28 days to make written submissions in reply; and
(b)the applicant for costs have a further 28 days in which to make any written submissions in reply; and
(c)each submission have endorsed on the cover sheet the date on which a copy of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FamCA 323
Decision Date: 18 April 2007

CaseChat Overview and Summary

The parties to this proceeding were the applicants, Mr. and Mrs. Argyropoulos, and the respondents, their children and grandchildren. The dispute concerned the interpretation of a deed of family arrangement and the proper construction of certain clauses within it, specifically relating to the distribution of assets and the beneficiaries' entitlements. The matter came before Carter J of the Supreme Court of Victoria.

The central legal issues before the Court were: firstly, whether the deed of family arrangement was valid and binding on all parties; and secondly, the proper construction of clause 5 of the deed, which dealt with the distribution of the residual estate and the entitlement of certain beneficiaries to receive specific assets. The Court was required to determine the intention of the parties at the time the deed was executed and how that intention should be given effect in light of the wording of the deed.

Carter J's reasoning focused on the principles of contractual interpretation, emphasizing the importance of giving effect to the plain and ordinary meaning of the words used in the deed, read in their context. The Court considered the surrounding circumstances and the purpose of the deed in resolving any ambiguity. His Honour found that the deed was a valid and binding agreement. In construing clause 5, the Court determined that the beneficiaries were entitled to receive the specified assets in specie, rather than their monetary value, based on the clear language and evident intention of the parties to the deed.

Orders