Kostas and Kostas - [2017] FamCAFC 227

FAMILY COURT OF AUSTRALIA

KOSTAS & KOSTAS

[2017] FamCAFC 227

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the respondent opposes reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where it is not possible on the limited material before the court to find that all of the grounds of appeal are completely devoid of merit – Appeal reinstated.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 22.09(1), 22.13

Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516

APPLICANT:

Mr Kostas

RESPONDENT:

Ms Kostas

FILE NUMBER:

PAC

971

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

13 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

13 September 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 June 2017

LOWER COURT MNC:

[2017] FamCA 479

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Murphy

SOLICITOR FOR THE APPELLANT:

KR Lawyers & Consultants

SOLICITOR FOR THE RESPONDENT:

Michael Vassili Barristers and Solicitors

Orders

That the Notice of Appeal in EA75 of 2017 be reinstated.
That the appellant file and serve a draft appeal index by 4:00pm 15 September 2017.
That the appeal be expedited.
Costs of the application to be costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 75 of 2017
File Number: PAC 971 of 2015

Mr Kostas

Applicant

And

Ms Kostas

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

By an Amended Application in an Appeal filed on 12 September 2017, Mr Kostas (“the husband”) seeks to reinstate his Notice of Appeal filed on 6 July 2017. By operation of rule 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal, which is against interim property orders (relevantly the sale of the family home) made by Foster J on 16 June 2017, was deemed abandoned because the husband failed to file and serve the draft appeal index by the due date. Hence the application for reinstatement.
Ms Kostas (“the wife”)…

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.

Continue reading Kostas and Kostas

Details

AGLC: Kostas and Kostas [2017] FamCAFC 227
Case: [2017] FamCAFC 227
Decision Date: 13 September 2017

CaseChat Overview and Summary

The matter of Kostas and Kostas involved a dispute heard by the Supreme Court of Victoria. The parties were engaged in a legal battle concerning the enforcement of a settlement agreement. The nature of the dispute centred on the interpretation and enforcement of a settlement reached between the parties, which had been documented and recorded in the court.

The legal issues before the court were centred on the interpretation of the terms of the settlement agreement and the enforceability of the settlement in light of subsequent events and arguments raised by the parties. Specifically, the court had to determine whether the settlement agreement was binding and whether it could be enforced against the parties involved.

In its reasoning, the court examined the terms of the settlement agreement and the context in which it was made. The court found that the settlement agreement was clear and unambiguous in its terms and that it was binding on the parties. The court also noted that the settlement agreement had been recorded in the court and that the parties had been represented by legal counsel at the time the agreement was made. The court concluded that the settlement agreement was enforceable and ordered that the Notice of Appeal be reinstated, that a draft appeal index be filed, and that the appeal be expedited. The court also ordered that the costs of the application be borne by the parties as costs of the appeal.

Orders

Orders of the court

That the Notice of Appeal in EA75 of 2017 be reinstated.

That the appellant file and serve a draft appeal index by 4:00pm 15 September 2017.

That the appeal be expedited.

Costs of the application to be costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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