Goyan v Motyka (No 2) - [2009] FCA 1360

FEDERAL COURT OF AUSTRALIA
Goyan v Motyka (No 2) [2009] FCA 1360
MARIA GOYAN v WOLODYMYR MOTYKA
SAD 93 of 2008
MICHAEL GOYAN v WOLODYMYR MOTYKA
SAD 94 of 2008
BESANKO J
24 NOVEMBER 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 93 of 2008

BETWEEN:
MARIA GOYAN
Applicant

AND:
WOLODYMYR MOTYKA
Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

24 NOVEMBER 2009

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of the applicant’s application dated 29 April 2008 assessed on the following basis:
1.1from 29 April 2008 to 20 November 2008, on a party and party basis, save and except for the costs of the applicant’s application for questions of fact to be tried by a jury pursuant to s 30(3) of the Bankruptcy Act 1966 (Cth) which costs are to be assessed and paid on an indemnity basis;

1.2 from 21 November 2008, on an indemnity basis.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 94 of 2008

BETWEEN:
MICHAEL GOYAN
Applicant

AND:
WOLODYMYR MOTYKA
Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

24 NOVEMBER 2009

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of the applicant’s application dated 29 April 2008 assessed on the following basis:
1.1From 29 April 2008 to 20 November 2008, on a party and party basis, save and except for the costs of the applicant’s application for questions of fact to be tried by a jury pursuant to s 30(3) of the Bankruptcy Act 1966 (Cth) which costs are to be assessed and paid on an indemnity basis;

1.2 From 21 November 2008, on an indemnity basis.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 93 of 2008

BETWEEN:
MARIA GOYAN
Applicant

AND:
WOLODYMYR MOTYKA
Respondent

SAD 94 of 2008

BETWEEN:
MICHAEL GOYAN
Applicant

AND:
WOLODYMYR MOTYKA
Respondent

JUDGE:

BESANKO J

DATE:

24 NOVEMBER 2009

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

These reasons deal with the costs of two proceedings in the Court. In the first proceeding (No SAD 93 of 2008), Mrs Maria Goyan sought orders against Mr Wolodymyr Motyka in relation to a bankruptcy notice served on her by Mr Motyka on 10 April 2008. In the second proceeding (No SAD 94 of 2008), Mr Michael Goyan (Mrs Maria Goyan’s husband) sought orders against Mr Wolodymyr Motyka in relation to a bankruptcy notice served on him by Mr Motyka on 10 April 2008.
Each proceeding was instituted in the Federal Magistrates Court on 29 April 2008 and transferred to this Court by order made by the Federal…

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: [2009] FCA 1360
Decision Date: 24 NOVEMBER 2009

CaseChat Overview and Summary

In the matter of Goyan v Motyka, the court was presented with a dispute arising from a refusal to accept a settlement offer. The parties involved in the dispute were the applicants, Goyan, and the respondent, Motyka. The core issue was whether the refusal of the applicants to accept a settlement offer made by the respondent during negotiations in November 2008 was considered an imprudent refusal of an offer of compromise, which would warrant an award of costs on an indemnity basis. The court had to decide if such a characterization was appropriate and, if so, determine the appropriate costs to be awarded.

The legal issues before the court included the interpretation of the settlement offer and the assessment of whether the refusal was indeed imprudent. The court needed to consider the circumstances surrounding the offer and the applicants' refusal, including the nature of the settlement offer which included concessions on interest, costs, and instalments for the principal amounts. The court also had to evaluate the principles guiding the award of costs for imprudent refusals of offers of compromise under relevant Australian legal practice.

The court concluded that the applicants' refusal of the settlement offer was indeed imprudent. Given this characterization, the court awarded costs to the respondent on an indemnity basis from the date of the offer, 21 November 2008. For the period before this date, the costs were to be assessed on a party and party basis, except for specific costs related to an application for questions of fact to be tried by a jury, which were to be assessed and paid on an indemnity basis. The court's decision was grounded in the principle that parties should be encouraged to settle disputes to avoid unnecessary litigation expenses.

The final orders mandated that the applicants pay the respondent's costs from 29 April 2008, with costs from 29 April 2008 to 20 November 2008 assessed on a party and party basis, except for specific jury trial costs assessed on an indemnity basis. From 21 November 2008, all costs were to be assessed on an indemnity basis. This decision underscored the importance of prudent settlement negotiations and the consequences of rejecting reasonable offers during litigation.

Orders

Orders of the court

1. The applicant pay the respondent’s costs of the applicant’s application dated 29 April 2008 assessed on the following basis:

1.1 from 29 April 2008 to 20 November 2008, on a party and party basis, save and except for the costs of the applicant’s application for questions of fact to be tried by a jury pursuant to s 30(3) of the Bankruptcy Act 1966 (Cth) which costs are to be assessed and paid on an indemnity basis;

1.2 from 21 November 2008, on an indemnity basis.

Note:

1. The applicant pay the respondent’s costs of the applicant’s application dated 29 April 2008 assessed on the following basis:

1.1 From 29 April 2008 to 20 November 2008, on a party and party basis, save and except for the costs of the applicant’s application for questions of fact to be tried by a jury pursuant to s 30(3) of the Bankruptcy Act 1966 (Cth) which costs are to be assessed and paid on an indemnity basis;

1.2 From 21 November 2008, on an indemnity basis.

Note:

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

BESANKO J

The settlement negotiations in November 2008 included an offer by the respondent to forgo part of a claim for interest, a claim for costs and to accept payment of the principal amounts by instalments. The offer was not accepted by the applicants. In my opinion, it is proper to characterise their refusal of the offer as an imprudent refusal of an offer of compromise and to award costs assessed on an indemnity basis from 21 November 2008.Conclusion For these reasons, I will make the following orders:No SAD 93 of 2008:The applicant pay the respondent’s costs of the applicant’s application dated 29 April 2008 assessed on the following basis:1.from 29 April 2008 to 20 November 2008, on a party and party basis, save and except for the costs of the applicant’s application for questions of fact to be tried by a jury pursuant to s 30(3) of the Bankruptcy Act 1966 (Cth) which costs are to be assessed and paid on an indemnity basis;2.from 21 November 2008, on an indemnity basis.No SAD 94 of 2008:The applicant pay the respondent’s costs of the applicant’s application dated 29 April 2008 assessed on the following basis:1.from 29 April 2008 to 20 November 2008, on a party and party basis, save and except for the costs of the applicant’s application for questions of fact to be tried by a jury pursuant to s 30(3) of the Bankruptcy Act 1966 (Cth) which costs are to be assessed and paid on an indemnity basis;2.from 21 November 2008, on an indemnity basis.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.

BETWEEN:	MARIA GOYAN Applicant
AND:	WOLODYMYR MOTYKA Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	24 NOVEMBER 2009
WHERE MADE:	ADELAIDE

BETWEEN:	MICHAEL GOYAN Applicant
AND:	WOLODYMYR MOTYKA Respondent

SAD 94 of 2008
BETWEEN:	MICHAEL GOYAN Applicant
AND:	WOLODYMYR MOTYKA Respondent

JUDGE:	BESANKO J
DATE:	24 NOVEMBER 2009
PLACE:	ADELAIDE