Garapiperis and Kasiopoulos

[2012] FamCAFC 161

FAMILY COURT OF AUSTRALIA

GARAPIPERIS & KASIOPOULOS [2012] FamCAFC 161

FAMILY LAW ─ APPEAL ─ COSTS JUDGMENT ─ Where the wife challenged the trial Judge’s refusal to make an order for costs in her favour with regards to the costs of financial proceedings previously determined by his Honour ─ Where the wife submitted that the trial Judge gave insufficient weight to the offers of settlement she made to the husband ─ Where the trial Judge was exercising a broad discretion in relation to the wife’s costs application (see Penfold v Penfold (1980) 144 CLR 311) ─ Nothing to which the Court was referred established that the trial Judge could not reasonably have concluded as he did or that his conclusions were vitiated by material errors of fact with respect to the offers of settlement ─ Where the wife challenged the trial Judge’s conclusion with respect to a party being “wholly unsuccessful” ─ Where the Court cannot accept that his Honour’s conclusion with respect to the success or otherwise of the husband in the substantive proceedings was not reasonably open to him, or that it was vitiated by reliance upon material errors of fact ─ Where the wife also submitted that the trial Judge’s decision referred to his Honour’s finding that the proceedings he heard, and determined were on review a “different case” to those heard and determined by the Judicial Registrar ─ Nothing to which the Court was referred established that, even if, contrary to the Court’s conclusion, his Honour erred in finding as he did either as to the case being “very different”, or how that came about, that such error vitiated the exercise of his discretion ─ Where the Court found that there was no error of law, or fact, or logic in his Honour’s determination of the wife’s costs application ─ Appeal dismissed

Family Law Act 1975 (Cth) s 117(2)

Penfold v Penfold (1980) 144 CLR 311

APPELLANT: Ms Garapiperis

RESPONDENT: Mr Kasiopoulos

FILE NUMBER: SYC 6432 of 2008

APPEAL NUMBER: EA 96 of 2011

DATE DELIVERED: 8 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman, Thackray & Stevenson JJ

HEARING DATE: 4 May 2012

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 July 2011

LOWER COURT MNC: [2011] FamCA 634

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Givney

SOLICITOR FOR THE APPELLANT: Vizzone Ruggero & Associates

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Hancock Alldis & Roskov Lawyers & Notaries Public

Orders

1. That the appeal be dismissed.

2. That costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garapiperis & Kasiopoulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 96 of 2011

File Number: SYC 6432 of 2008

Ms Garapiperis

Appellant

And

Mr Kasiopoulos

Respondent

REASONS FOR JUDGMENT

introduction  

1. By Notice of Appeal filed 22 August 2011 Ms Garapiperis (“the wife”) appealed against Loughnan J’s refusal on 25 July 2011 to make an order in her favour against Mr Kasiopoulos (“the husband”) for the costs of financial proceedings determined by his Honour on 2 December 2010.

2. On 21 June 2012, for reasons which the Court then published, the orders made by Loughnan J in the substantive proceedings were varied in one minor respect. The variation of his Honour’s substantive orders assumes no significance in the context of this appeal.

background

1. In determining the wife’s costs application, the trial Judge had regard to the financial circumstances of the parties which undoubtedly, as his Honour recognised, revealed that the husband was in a significantly better financial position than the wife. It is not suggested that the trial Judge misconceived the disparity in the financial position of the parties as a consequence of the orders he made on 2 December 2010 or the magnitude of such disparity.

2. The conduct of the parties in the proceedings was not regarded by the trial Judge as a matter of significance. Nor was the failure of a party to comply with court orders. Neither of those matters assumes significance in the present appeal.

3. The trial Judge concluded that neither party had been “wholly unsuccessful” in the proceedings before him. The trial Judge referred to the offers and counter offers of settlement revealed by the evidence but concluded that the offers of settlement did not support the wife’s claim for costs. Those matters assume significance in this appeal.

4. Essentially for the foregoing reasons the trial Judge concluded that the circumstances did not justify an order for costs.

the grounds of appeal

1. The grounds of appeal articulated on behalf of the wife fall within 3 categories.

Offers of Settlement

1. The first relates to the offer of settlement made by the wife on 20 March 2010, it being submitted that the trial Judge gave insufficient weight to that offer. The submissions in support of this complaint are brief, and we can do no better than restate them in the terms in which they appear in Counsel for the wife’s summary of argument. The submissions asserted:

   1.On 29 January 2009 Judicial Registrar Johnston [as he then was] following hearing the cross applications for property settlement divided the pool of assets as he found as to 62.5 per cent to the Appellant and 37.5 per cent to the Respondent. His Honour then made an order that the wife would retain the former matrimonial home [B property] upon the payment to the husband of $89,077.00.

   2.Judicial Registrar Johnson found that the net value of the asset pool was $1,200,929.00.

   3.On 19 February 2010 the Respondent caused an Application for Review to be filed.

   4.On 1 March 2010 the Appellant made an offer of settlement which provided for the payment by the Appellant to the Respondent of $89,077.00 and otherwise mirrored the Orders made by Judicial Registrar Johnson. The offer of settlement was not accepted.

   5.On the hearing of the Application of the Review of the Trial Judge found the net asset pool to be $1,390,420.00. The Trial Judge ordered that the Appellant pay the Respondent to sum of $91,070.85 and upon such payment the Respondent transfer to the Appellant.

   6.There is no evidence the Respondent made a counter offer but in any event did not accept the offer so made by the Appellant.

   7.The Trial Judge considered the offer at paragraphs 14 and 16.

   8.At paragraph 18 of judgment the Trial Judge finds “because the pool was different” notwithstanding the offer of settlement being very close to the ultimate result the Trial Judge decided an Order for costs should not be made in favour of the Appellant.

   9.With respect to the Trial Judge there is very little difference in the pools referred to, the significant difference being the increase in the value of the former matrimonial home, a factor which would favour the Respondent as this would have likely meant that the offer so made by the Appellant would not be an offer within an acceptable range.

   10.As the parties had attended a conciliation conference, both having sworn Financial Statements and further had been involved in a trial the Respondent could not possible argue that he did not have an understanding or any misapprehension of the asset pool. (Errors as in original, original emphasis, and footnotes omitted)

2. It was thus submitted on behalf of the wife that having rejected or ignored a “reasonable offer seriously made” the husband was at peril as to costs. It was further submitted in support of this challenge:

   13.The Trial Judge seemed to be confused that it was necessary to compare the two judgments when the argument is based upon an open offer of settlement being made. It may have been appropriate for the Trial Judge to consider a comparison in the judgments and asset pools if the Appellant’s Application was simply based upon the fact that the result was similar to that which was obtained before Judicial Registrar Johnsons. The Appellant’s case however is founded upon the open offer of settlement being made which was almost exactly the result that she achieved. (Errors as in original)

3. On behalf of the husband it was submitted, by reference to the wife’s offers, that “the result ultimately achieved by the Husband [from Loughnan J] exceeded the amount he would receive in all of the offers made by the Wife.” Perhaps more significantly, it was further submitted that “the Wife’s offers bore no correlation to the net asset pool as determined by Justice Loughnan.”

4. As is not in doubt, the trial Judge was exercising a broad discretion in relation to the wife’s costs application (see Penfold v Penfold (1980) 144 CLR 311). As is common in cases involving the exercise of discretion, a number of different conclusions were reasonably open to his Honour. In this case, it cannot be successfully asserted, particularly having regard to the different asset pools at different times, that the offers of settlement could properly be considered solely by reference to the monetary difference between what was offered by a party, and what was awarded by the court. The trial Judge was clearly alive to these complexities, and recorded the history of the offers of settlement, and responses to them or their absence.

5. The trial Judge then recorded:

   14.... The problem with this, I think, is the problem with the matter as a whole. It was a different case and in those circumstances, it is a bit hard to say. He would have literally been better off because he would have had his money then rather than waiting another year to $1900. He would not have incurred legal fees and he would have been better off, but the fact is the world did not stay the same.

6. His Honour further recorded:

   15.There were a number of liabilities crystallised as a result of the husband taking certain steps in relation to some shares and also the [B] property increased in value to a considerable extent. So it seems to me on the basis of that material, those factors would not justify, in terms of the offers of settlement, or there being somebody wholly unsuccessful would not justify a costs order. ...

7. Nothing to which we have been referred establishes that the trial Judge could not reasonably have concluded as he did in those paragraphs of his reasons for judgment, or that his conclusions were vitiated by material errors of fact. As his Honour recorded, it may be that a party would have been better off had he or she accepted an offer of settlement but, as his Honour also recorded, such an approach was somewhat simplistic in this case. We acknowledge that the facts of this case could have supported a different conclusion to that which his Honour reached, but that does not render his Honour’s conclusion erroneous.

8. Essentially for the reasons his Honour articulated, we are not satisfied that his conclusion with respect to the offers of settlement was not reasonably open to him. Nor are we satisfied that any “confusion attended the exercise of his Honour’s discretion, in relation to offers of settlement or otherwise.”

“Wholly Unsuccessful”

1. The second group of challenges to the trial Judge’s decision related to his Honour’s conclusion with respect to a party being “wholly unsuccessful”. Again, we can do no better than reproduce the submissions of Counsel for the wife in relation to this issue.

2. Those submissions asserted:

   14.The question in this matter as to what is meant by the concept of “wholly unsuccessful”. It is submitted that the context should be found as follows:

   14.1The result achieved by the result before Judicial Registrar Johnston was almost exactly the same as the result received from the Trial Judge.

   14.2The open offer of settlement made by the Appellant was almost the same as the ultimate result that she achieved from the judgment of the Trial Judge.

   14.3Although the Respondent was successful in arguing against a number of add backs and the overall approach by the Appellant to the asset pool due to the use of matrimonial funds by the Respondent post the Orders made by Judicial Registrar Johnston the ultimate outcome so far as the Respondent was concerned was completely different to that which he sought in submissions at the trial.

   15.As such it is difficult to see as to how the Trial Judge could find that the Respondent was not “wholly unsuccessful”.

3. It was submitted on behalf of the husband that it was open to the trial Judge to conclude as his Honour did in relation to the comparative absence of success of the husband. It was further submitted:

   ... that the Trial Judge was not in error in his finding in relation to the above and further that he was correct in stating that a reading of the two Judgments (namely the then Judicial Registrar’s and his own) reveals that the case was “a very different case” before himself and that “the world did not stay the same”. ...

4. The trial Judge carefully considered the contention of the wife that the husband had been wholly unsuccessful. His Honour recorded in that regard:

   10.... There was a significant change in terms of the value of assets and liabilities between the date Judicial Registrar Johnson, as he then was, determined the matter and the date I determined the matter. Had all things remained equal, one might say, well, the husband’s challenge resulted in a difference of $1900 which is not significant and there would be an argument about the relative lack of success or not. Even then, I don’t know that it can fairly be said that the husband was wholly unsuccessful in the proceedings.

   11.... So, I think the better view, as I say even though the orders have a not dissimilar look about them, a reading of the two judgments reveals that the case is a very different case and that is just simply the product of the fact that nothing stands still between the hearing of an application and a fresh hearing conducted about a year later. (Errors as in original)

5. As with the offers of settlement, the evidence before the trial Judge may have supported conclusions which differed from those reached by his Honour. That does not render his Honour’s conclusion erroneous.

6. The trial Judge provided cogent reasons for concluding as he did with respect to the success or otherwise of the husband in the substantive proceedings. We cannot accept that his Honour’s conclusion was not reasonably open to him, or that it was vitiated by reliance upon material errors of fact.

A “Different Case”

1. The third group of challenges to the trial Judge’s decision refer to his Honour’s finding that the proceedings he heard, and determined were on review a “different case” to those heard and determined by Judicial Registrar Johnston (as Johnston J then was).

2. In support of this complaint Counsel for the wife submitted:

   16.It is difficult to understand what His Honour meant by “it was a different case”. The asset pool is not remarkably different and a comparison in the values of the asset pool as per above indicates that the difference was only $189,000.00.

   17.Again however the increase in the value of the pool one would reasonable assume that that in the context of an offer being made by the Appellant would benefit the Respondent.

   18.In simple terms this was a marriage of long duration where both parties made significant contributions and at the time of the hearing the Respondent was earning a substantial income as compared to that of the Appellant. Thus the pool was not significantly different and the factors to be considered were the same save for the Respondent’s dealing with the assets post the hearing by Judicial Registrar Johnston. (Errors as in original)

3. It was submitted by Counsel for the husband that the trial Judge’s discussion of the earlier proceedings, and the review which his Honour heard, provided ample support for his finding that the latter was a “very different case”.

4. Nothing to which we have been referred establishes that, even if, contrary to our conclusion, his Honour erred in finding as he did (at par 11), either as to the case being “very different”, or how that came about, that such error vitiated the exercise of his discretion. The matters to which we have earlier referred amply supported his Honour’s conclusion with respect to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”). As with the earlier topics with which we have engaged, other conclusions may also have been open to the trial Judge, but that is not the test.

conclusion

1. As the trial Judge’s reasons for judgment record, the issue in relation to both offers of settlement, and the comparative success of the husband were somewhat complicated, no doubt for the reasons which the trial Judge identified, and recorded in his reasons for judgment.

2. Whilst, as his Honour clearly recognised, the husband may in monetary terms have been, at best, minimally advantaged by the outcome of the review proceedings determined by him, and, in common with countless other litigants, have been financially better off had he accepted the earlier offer, the issue was not confined to, or as simple as a consideration of those matters, as the trial Judge recognised.

3. We find no error of law, or fact, or logic in his Honour’s determination of the wife’s costs application.

4. No basis for appellate intervention having been established, the appeal will be dismissed.

costs

1. Although we are unaware of any submissions in relation to the costs of this appeal, we will entertain any application which might be made on behalf of the husband in that regard. Having regard to the matters to which the trial Judge referred, and the considerably stronger financial position of the husband than the wife, we cannot imagine that anything which might be put to us would lead us to form the opinion required by s 117(2) of the Act, but, as a matter of natural justice, we cannot deny the husband the opportunity to seek costs if he wishes to.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray & Stevenson JJ) delivered on 8 October 2012.

Associate:

Date: 08.10.2012