Stylianos & Stylianos

Case [2021] FedCFamC1F 145

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Stylianos & Stylianos [2021] FedCFamC1F 145

File number(s): SYC 4367 of 2019
Judgment of: WILSON J
Date of judgment: 21 October 2021
Catchwords: COSTS– arbitration.
Legislation:

Family Law Act ss 13H, s 79, s 117(1) s 117(2A)(c),(d), (e), (f)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Ch 12 and 13

Evidence Act (2008) s 128(3)

Cases cited:

Bacall v Zagar [2020] FamCA 350

Byrns v Davie [1991] 2 VR 568

Fitzgerald v Fish (2005) 33 Fam LR 123

Ritter v Godfrey [1920] KB 47

Stasiuk & Guild [2021] FamCAFC 62
Division: Division 1 First Instance
Number of paragraphs: 36
Date of last submission: 30 September 2021
Place: Melbourne
Solicitor for the Applicant: York Law Family Law Specialists
Solicitor for the Respondent: CM Lawyers

ORDERS

SYC4367 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR STYLIANOS

Applicant
AND:

MS STYLIANOS

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

21 OCTOBER 2021

THE COURT ORDERS THAT:

(1)The applicant’s application for costs of and incidental to this proceeding on an indemnity basis is dismissed.

(2)The applicant’s application for costs of and incidental to this proceedings on a solicitor/ client basis is dismissed.

(3)The respondent must pay the applicant’s costs of this proceeding on a party/party basis, such costs fixed in the sum of $12,500.

(4)On or before 4:00pm on 12 December 2021 the respondent must pay the applicant the sum of $12,500.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

WILSON J

INTRODUCTION

  1. Following the arbitration of this proceeding pursuant to orders made on 28 April 2021 I made consent orders pursuant to s 13H of the Family Law Act registering the arbitral award published on 9 April 2021.

  2. By application in a case filed on 24 May 2021 the husband sought his costs of and incidental to this proceeding on an indemnity basis.  That application came before me on 8 June 2021 on which date, by consent, orders were made adjourning the costs application to 1 July 2021 to allow the parties the opportunity of assessing the consequences of implementing the orders made by the learned arbitrator.  Each party provided…

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Stylianos & Stylianos [2021] FedCFamC1F 145
Case
[2021] FedCFamC1F 145
Decision Date

CaseChat Overview and Summary

The case of Stylianos & Stylianos involved a dispute between Mr Stylianos and Ms Stylianos, which was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was a request by the husband for costs associated with the arbitration, which he argued should be awarded in his favour due to the wife’s alleged failure to disclose relevant information regarding her inheritance and other assets. The husband claimed that the wife's conduct led to difficulties in tracking the inheritance and adhering to court orders, resulting in extended arbitration and additional costs.

The legal issues the court needed to address included whether the husband's application for costs should be granted under the various subsections of s 117(2A) of the Family Law Act 1975, including considerations of the parties' conduct, the success or failure of specific issues, compliance with previous court orders, and the presence of any written offers. The husband's submissions were based on the wife's non-disclosure of her brother's estate details, failure to produce bank statements, and alleged incorrect legal arguments regarding the constructive trust on certain assets.

The court, in its reasoning, examined the husband's claims in detail. It found that while the wife did not fully comply with the pre-action disclosure and court orders, these failures did not warrant a costs order in favour of the husband under the Family Law Act. The court also highlighted that the husband's affidavit did not sufficiently demonstrate that the wife's conduct led to any significant negative outcomes or that the arbitration was unduly extended by one day due to the subpoenae. Ultimately, the court dismissed the husband's application for indemnity and solicitor-client costs but ordered the wife to pay the husband's costs of the proceeding on a party/party basis, fixed at $12,500.

Orders

Orders of the court

SYC4367 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STYLIANOS

Applicant

AND:

MS STYLIANOS

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

21 OCTOBER 2021

THE COURT ORDERS THAT:

(1) The applicant’s application for costs of and incidental to this proceeding on an indemnity basis is dismissed.

(2) The applicant’s application for costs of and incidental to this proceedings on a solicitor/ client basis is dismissed.

(3) The respondent must pay the applicant’s costs of this proceeding on a party/party basis, such costs fixed in the sum of $12,500.

(4) On or before 4:00pm on 12 December 2021 the respondent must pay the applicant the sum of $12,500.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In written submissions prepared on behalf of the husband on this costs application, the husband contended that an order for costs in his favour should be made. That was because, so the husband asserted – (a)the wife failed to engage in any pre-action disclosure in the period February 2017 to July 2019 at which time the husband was forced to commence family law litigation (his words);(b)the wife failed to disclose any documentation related to letters of administration in respect of her brother’s estate until the first day of the arbitration; (c)the wife failed to produce bank statements from five separate bank accounts to demonstrate that the wife was “parking” (the husband’s words) her inheritance and which were only produced after subpoenae had been issued; (d)the 13 subpoenae issued in relation to the wife’s inheritance had been directed to documents in respect of accounts held jointly with the wife’s children and, according to the husband, caused the arbitration to be extended by one day;(e)the wife persisted, erroneously according to the husband, in arguing that she held title to certain assets on a constructive trust in favour of certain of her children; and(f)the husband was forced to follow the flow of funds relating to her inheritance from account to account. THE HUSBAND’S EVIDENCE ON THIS COSTS APPLICATION The husband made an affidavit on 21 May 2021 in support of this costs application. The husband structured his evidence in that affidavit to narrate factors he said supported a costs order under any of s 117(2A)(c) (conduct of the parties), s 117(2A)(e) (an issue that was wholly unsuccessful), s 117(2A)(d) (failure to comply with a previous court orders) and s 117(2A)(f) (an offer in writing). It is necessary to take each in turn. CONDUCT OF THE PARTIES – S 117(2A)(c) The wife’s brother died in mid-2015 leaving a significant sum to the wife. The arbitrator found that the sum left to the wife was $1,125,837.56. The husband deposed to the wife receiving that sum in two tranches. The husband deposed to the wife failing to disclose the inheritance she received with the consequence, according to the husband, that he was unable to “determine where the money was, how much was actually received or what Ms Stylianos did with the money”. The husband also deposed to his solicitor making 13 separate requests for disclosure about the estate over the period February 2017 and February 2021. The husband deposed to the responses provided by the wife’s solicitors over that period. Those responses included correspondence form the wife’s solicitor in April 2020 pointing out that letters of administration had been granted rather than probate, and a letter from the wife’s solicitors in January 2021 informing the husband’s solicitors that the wife had received $1,125,837.56 along with documentation from the Supreme Court of Victoria provided to the husband’s solicitors on the first day of the arbitration. The husband deposed to orders made when this proceeding was before the Federal Circuit Court of Australia and the wife’s non-compliance with those orders, specifically referrable to disclosure concerning the wife’s brother’s estate. Those orders were made on 8 April 2021, 11 May 2020 and 5 June 2020. The husband also deposed to the wife not complying with those orders.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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