Voukidis v Anastasopoulos and Anor (No.2) - [2020] FCCA 3501

FEDERAL CIRCUIT COURT OF AUSTRALIA

VOUKIDIS v ANASTASOPOULOS & ANOR (No.2)

[2020] FCCA 3501

Catchwords:
COSTS – Calderbank offer – relevant considerations.

Legislation:

Bankruptcy Act 1966, ss.73, 222

Federal Circuit Court of Australia Act 1999, s.79

Federal Circuit Court (Bankruptcy) Rules 2016, r.13.01
Federal Court Rules 2011, rr.40.02, 40.29, item 18 of sch.3
Federal Circuit Court Rules 2001, r.15A.11
Legal Profession Uniform Law Application Act 2014 (NSW), pt.7

Cases cited:

Voukidis v Anastasopoulos & Anor [2019] FCCA 3397

Calderbank v Calderbank [1975] 3 All ER 333
Commonwealth of Australia v Gretton [2008] NSWCA 117
CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173
Taleb v GM Holden Ltd (2011) 286 ALR 309
Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No.2) [2009] FCA 1494
Seven Network Ltd v News Ltd (2007) 244 ALR 374
Facton Ltd v Seo (2011) 91 IPR 135
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
Leichhardtv Municipal Council v Green [2004] NSWCA 341
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Applicant:

OLGA VOUKIDIS

First Respondent:

GEORGINA ANASTASOPOULOS

Second Respondent:

LOUISE THOMSON IN HER CAPACITY AS TRUSTEE FOR THE BANKRUPT ESTATE OF GEORGINA ANASTASOPOULOS

File Number:

SYG 2634 of 2017

Judgment of:

Judge Cameron

Hearing date:

On the papers

Date of Last Submission:

On the papers

Delivered at:

Sydney

Delivered on:

23 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr A. Hopkins of counsel

Solicitors for the Applicant:

CLIC Law Group Pty Ltd

Counsel for the FirstRespondent:

Mr J. Rose of counsel

Solicitors for the First Respondent:

Diamond Conway Lawyers

The Second Respondent filed a submitting appearance.

ORDERS

The applicant pay the first respondent’s costs of the proceeding on the party and party basis as agreed or taxed pursuant Part 40 of the Federal Court Rules 2011.
The applicant and the first respondent pay their own costs of the argument on costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2634 of 2017

OLGA VOUKIDIS

Applicant

And

GEORGINA ANASTASOPOULOS

First Respondent

LOUISE THOMSON IN HER CAPACITY AS TRUSTEE FOR THE BANKRUPT ESTATE OF GEORGINA ANASTASOPOULOS

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

INTRODUCTION

On 25 November 2019 this Court dismissed the applicant’s (“Olga’s”) application under s.222 of the Bankruptcy Act 1966 (“Act”), for orders:
a)setting aside a composition under s.73 of the Act (“Composition”) into which the first respondent (“Georgina”) and her creditors had entered on 6 April 2017; and
b)restoring the creditors to the position they had been in before the Composition was proposed: Voukidis v Anastasopoulos & Anor [2019] FCCA 3397 at [1] (“First Judgment”).
The parties filed submissions regarding the costs of the proceeding and agreed that the Court should make a determination on the papers.
Georgina sought orders:
(a)…that…[Olga] pay [Georgina’s] costs (including reserved costs and amounts paid or payable by the First Respondent to Christos Voukidis…

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: [2020] FCCA 3501
Decision Date: 23 December 2020

CaseChat Overview and Summary

In *Voukidis v Anastasopoulos and Anor (No.2)*, heard by Judge Cameron in the Federal Court of Australia, the applicant sought to recover costs from the first respondent following a proceeding. The central dispute revolved around the appropriate order for costs, particularly in light of a *Calderbank* offer made by the first respondent.

The primary legal issue before the Court was whether the first respondent's *Calderbank* offer was a relevant consideration in determining the costs of the proceeding, and if so, what weight should be given to it. The Court was required to assess the reasonableness of the offer and its impact on the overall costs awarded.

Judge Cameron reasoned that the *Calderbank* offer was a significant factor to be considered when exercising the Court's discretion on costs. The Court found that the offer was reasonable and that the applicant had failed to achieve a more favourable outcome than that offered. Consequently, the Court ordered that the applicant pay the first respondent's costs of the proceeding on a party and party basis. The parties were ordered to bear their own costs for the argument on costs.

Orders

Orders of the court

ORDERS

1. The applicant pay the first respondent’s costs of the proceeding on the party and party basis as agreed or taxed pursuant Part 40 of the Federal Court Rules 2011.

2. The applicant and the first respondent pay their own costs of the argument on costs.

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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