SAFAR & MALOUF - [2021] FamCA 445

FAMILY COURT OF AUSTRALIA

SAFAR & MALOUF

[2021] FamCA 445

FAMILY LAW – NATIONAL ARBITRATION LIST – decree made pursuant to s 13K varying the arbitral award – orders made directing $50,000 to be held in trust pending ascertainment of costs.

FAMILY LAW – COSTS – offer to settle not responded to prior to arbitration – arbitral award making provisions more favourable to applicant than were the terms of her settlement offer – costs order made under s 117(2).

Family Law Act 1975 (Cth) ss 13K, 79, 106A, 117
Family Law Rules 2004 (Cth) div 10.1.2

Fitzgerald v Fish (2005) 33 Fam LR 123
Guild & Stasiuk [2020] FamCA 348
In the Marriage of Hogan (1986) 10 Fam LR 681
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Safar

RESPONDENT:

Mr Malouf

FILE NUMBER:

SYC

5068

2020

DATE DELIVERED:

1 July 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

29 June 2021

DATE OF FINAL SUBMISSION:

29 June 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Mcgrath Dicembre & Company

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Kalpaxis Legal Pty Ltd

Orders

I make a decree pursuant to s 13K(1) of the Family Law Act varying paragraph 1 of the arbitral award made on 9 April 2021 and registered by me on 24 May 2021 to the extent that from the amount of $194,944 referred to in paragraph 1 of the arbitral award, the applicant pay to the respondent the sum of $144,944 and pay the remaining $50,000 into the trust account of the applicant’s legal representatives, McGrath Dicembre & Company, pending either agreement or determination of costs as recorded in paragraph 2 herein.
The respondent pay the applicant costs of and incidental to this proceeding incurred from 20 November 2020 up until the conclusion of the arbitration hearing on 16 March 2021 as agreed or assessed.
Costs must be agreed on or before 30 July 2021 or failing agreement, costs must be assessed by a registrar with the assessment to be concluded by 30 September 2021.

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 Safar & Malouf 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 5068 of 2020

Ms Safar

Applicant

And

Mr Malouf

Respondent

REASONS FOR JUDGMENT

Introduction

Following the publication of the arbitral award in this proceeding[1] and its registration by order made on 24 May 2021, the applicant sought three orders in…

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 SAFAR & MALOUF

Details

AGLC: SAFAR & MALOUF [2021] FamCA 445
Case: [2021] FamCA 445
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Safar (the applicant) and Mr Malouf (the respondent) were involved in a property settlement dispute that had proceeded to arbitration. Following the arbitrator's award, Ms Safar sought orders to vary the award and for costs. The core of the dispute revolved around whether Ms Safar had achieved a better outcome in the arbitration than she had offered in a prior settlement proposal, and consequently, whether she was entitled to an order for costs against Mr Malouf.

The court was required to determine two primary legal issues. Firstly, whether a costs order should be made in favour of the applicant pursuant to section 117(2) of the *Family Law Act 1975* (Cth), having regard to the applicant's settlement offer and the outcome of the arbitration. Secondly, the court needed to consider the applicant's application to vary the arbitral award to allow a portion of the payment ordered to the respondent to be held in trust pending the determination of costs.

Justice Wilson found that the applicant was entitled to costs. This was based on the applicant's written offer to settle made on 20 November 2020, which the respondent failed to accept. The court determined that the arbitral award, while involving a lesser payment from the applicant to the respondent, was, when considered in its entirety, more favourable to the respondent than the applicant's settlement offer. The respondent's failure to accept the offer had unnecessarily prolonged the proceedings and incurred costs for the applicant. Consequently, the court ordered the respondent to pay the applicant's costs incurred from 20 November 2020 until the conclusion of the arbitration hearing.

In relation to the variation of the arbitral award, the court ordered that the applicant pay the respondent $144,944 of the $194,944 awarded by the arbitrator, with the remaining $50,000 to be paid into the trust account of the applicant's solicitors. This sum was to be held pending agreement or assessment of the costs ordered in favour of the applicant. The court set a deadline of 30 July 2021 for the parties to agree on costs, failing which the costs were to be assessed by a registrar by 30 September 2021.

Orders