Costa v Verney

Summary judgment 15UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court. It is only the ground that the proceedings are an abuse of process of the Court that was relied upon by Margaret Costa. 16UCPR 14.28(1) similarly provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading is an abuse of the process of the court. 17In Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 Beazley JA (with whom Mason P and Young CJ in Eq agreed) said: "11 The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is "so obviously untenable that it cannot possibly succeed"; "manifestly groundless" or "would involve useless expense": see General Steel Industries at 129. 12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602: '... the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried.' (Citations omitted)" 18On this appeal Patrick Costa submitted that the proceedings against Margaret Costa were not an abuse of process because the doctrine of res judicata or issue estoppel did not arise from the Family Court proceedings. The reason being is that he says that the Family Court Judge did not make a determination as to the amount of contributions of the husband and wife in relation to the Fairfield West property. According to Patrick Costa, when the Family Court proceedings were heard and determined, the exact amount owing on the Fairfield property was not known. According to Mr Costa, the quantum of the liability to Westpac only became known as at 28 January 2011 and it was from that date that each party's contribution could be ascertained. 19On this appeal counsel for Margaret Costa submitted that the relief Patrick Costa seeks in relation to the shortfall and payments was determined by Coleman J in the Family Court and it was not open to Mr Costa to relitigate those issues in other proceedings. Counsel for Margaret Costa further submitted that the relief sought in relation to the additional expenses should have been agitated in the Family Law proceedings and it was not open to Patrick Costa to agitate that subject matter in the Local Court proceedings. 20Mr Costa referred to various statements made in the transcript and some of the reasons in Coleman J's reasons for judgment dated 22 May 2009. It is necessary to briefly refer to portions of the transcript that Mr Costa submitted support his position, the relevant legislation and the Family Court judgments dated 22 May 2009 and 20 December 2010. 21Mr Costa also referred to a schedule of payments that was in evidence in the Local Court (at AB 76) where he lists mortgage payments both he and Margaret Costa made in relation to the Fairfield West property. His payments commence on 9 December 2003. According to this schedule he ceased making payments after 28 January 2011. Margaret Costa only paid amounts from 12 March 2008 to 3 November 2010. Mr Costa says that this schedule shows that he paid more than the other parties so that adjustments should be made. This is so they are each put in the position where they have paid a quarter share for the liability under the mortgage.

Family Court proceedings 22On 20 December 2006, Margaret Costa filed an application seeking orders for settlement of property against Patrick Costa pursuant to Part VIII of the Family Law Act 1975 (Cth). 23Both parties referred to ss 79 and 81 of the Family Law Act. They relevantly read: "Alteration of property interests 79(1) In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties..., such settlement or transfer of property as the court determines. (2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. ... (4) In considering what order should be made under this section the court shall take into account - (a) the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or im provement of the property, or otherwise in relation to the property; (b) the contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of homemaker or parent; (c) the effect of any proposed order upon the earning capacity of either party..." Duty of court to end financial relations 81 In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them." (my emphasis added) 24In February 2009, the Family Law proceedings were heard by Coleman J. Patrick Costa referred to the following portion of the 23 February 2009 transcript where his Honour had the following exchange with Ms Verney, Mr Costa's daughter (and the first defendant in the Local Court): "HIS HONOUR: There is not much to discuss, is there? The four of you bought it in four names for about $50,000 I think I was told this morning. There's about $50,000 shortfall?---There's about that roughly, yes. Like I said, I haven't looked into it to see what the exact amount is and it will be something that has to be discussed but as at this time the question was what's been done. At the end of the day what you---?---At the end of the day whatever is outstanding of my share I will have to make some kind of payment arrangement and whatever is outstanding for my ex-husband's share he will have to make some sort of payment arrangement. That is a matter between you and him and it may end up in some court, but vis-à-vis parents, the subject of this case, one way or the other however you and your ex-husband, estranged husband work out, absent some very good reason for thinking otherwise, you're up for half and your parents are up for half?---Yes, well I didn't think the way my ex-husband and myself were paying it was relevant to this. I am obviously wrong but it's like I said it's not something that we had discussed because I didn't feel as though it was something that we had discussed because I didn't feel as though it was something that need to be discussed. If all four of your came to some agreement that is the end of it. But it may be that if one looked at the last time when the default occurred, it may be that the litigation could be in another Court if you don't work it out with your parents on the one hand and your estranged husband on the other. It may be that you are the only one who made any payments and the five payments of $508 you could have an argument that you should pay a little less than precisely what a quarter of the outstanding balance is. But that's not a subject that come up in this Court?---Yes, it's a complicated situation that has been able to be discussed amongst the four of us. So that is where the complications do come in, into place. You may end up having a Court case with the whole four of you in it, but it ends up costing the whole lot of you a hell of a lot more that $50,000 if that happens?---Yes. HIS HONOUR: If that happens that is not something this Court can do anything about..." (T41.45 - 42.14, Ex B) 25It should be noted that while that was stated in the transcript it does not necessarily reflect the final position of the parties. 26The Fairfield West property is referred to in paragraphs [56] and [62], [86] to [90] of Coleman J's reasons for judgment dated 22 May 2009. His Honour stated: "56 In 2003 the parties purchased a 50 percent interest in [the Fairfield West property] as tenants in common in equal shares with their daughter Ebony and her husband Gavin. The property cost $260 000. The four purchasers jointly and severally borrowed $300 000 to complete the purchase. Thereafter the parties contributed 50 percent of the mortgage payments, Ebony and Gavin the other 50 percent. ... 62 In mid 2007, the borrowers having defaulted on their mortgage obligations with respect to the property at [the Fairfield West property], the mortgagee went into possession. The realisation of the property produced a shortfall of approximately $50 000 for which the husband and wife, Ebony and Gavin remained jointly and severally liable. ... 86 As is not in doubt, the shortfall consequent upon the mortgagee sale of the property at Fairfield West which the husband and wife, their daughter Ebony and her husband Gavin acquired, currently approximates $50 000. That sum is probably increasing notwithstanding that Ebony has made, and is making, some payments with respect to the shortfall. 87 The husband and wife are jointly and severally liable with respect to the shortfall. Whilst the parties have more than sufficient assets to discharge the shortfall, there is no evidence before this Court which enables it to reach any conclusion as to the capacity of Ebony and/or Gavin to meet half the shortfall to the Bank. 88 The difficulty in this case is that, whilst in theory the sum borne by the parties should be one half of the shortfall that is by no means a certain outcome. Realistically, the Bank would no doubt be aware that the property of the parties to the proceedings in this Court render them "easy targets" in terms of the recovery of the shortfall, leaving the parties to their rights of contribution against Ebony and Gavin. Those rights may be worth nothing. 89 Ebony appears to be more aligned with the wife than the husband at present. However, there is no evidence that any collusive action might occur in relation to the shortfall. Nevertheless, to protect both the husband and wife, an order that the parties indemnify each other as to 50 percent of any liability incurred by either of them with respect to the shortfall would mean that the shortfall borne by the parties would be borne by them equally. This would in practical terms have the same effect as deducting from the property of the parties the amount of such shortfall. 90 The Court has raised with both Counsel the order proposed in relation to the Fairfield West shortfall. The Court does not understand that either party opposes an order in the terms proposed." 27It is clear that the Family Court orders determine Mr and Mrs Costa's liabilities in relation to the shortfall resulting from the sale of the Fairfield West property. These orders do not specifically deal with an adjustment to reflect to the parties' contributions. 28Order 12 of his Honour's orders reads: "(12) That the parties mutually indemnify each other as to one half of such liability as the partis shall be held, by agreement or adjudication, to have with respect to the shortfall resulting from the sale of the property at XX XXXX XXXX Fairfield West formerly co-owned by the husband and wife as tenants in common in equal shares with third parties." 29On 20 December 2010, Order 12 was varied by the Family Court to read: "4. That order 12 of the orders of 22 May 2009 be amended to provide that the wife indemnify the husband with respect to such liability as the husband shall be held, by agreement or adjudication, to have with respect to the shortfall resulting from the sale of the property at XXXX XXXX Fairfield West formerly co-owned by the husband and wife as tenants in common in equal shares with third parties."

Res judicata and issue estoppel 30The principles of res judicata or issue estoppel apply where there is an attempt to re-litigate issues that have previously been determined in proceedings. Alternatively, an attempt to litigate issues which could and should have been litigated in previous proceedings will give rise to the Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 31Dixon J's analysis of these two principles in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 remains a guiding precedent. His Honour says at 531-532: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." 32Therefore, for the Magistrate to strike out Mr Costa's claim against Mrs Costa it has to be clear that there is re-litigation of the same causes of action that were litigated in the Family Court or that the Local Court proceedings are likely to involve the same issues that were in dispute in the Family Court such as to give rise to res judicata and issue estoppel.

The Magistrate's reasons 33The Magistrate referred to the provisions of UCPR 13.4, reproduced earlier in this judgment. 34The Magistrate in his ex tempore reasons stated (T6-9): "I note that the substantive claim by the plaintiff, as against all of the defendants, is for losses that he says he sustained as a consequence of - and I am using the terminology from Mr Wilson's submissions on the second page - the unequal and extra mortgage payments made by Mr Costa toward a property at XX XXXX XXXX, Fairfield West. As I understand it, that property was purchased by the plaintiff and third defendant in or about late 2003. The second and third defendants became involved in that property - I am sure as registered proprietors or not - but certainly they were involved, at some point in time, in making some mortgage payments towards that property. The property was ultimately sold at a mortgagee-in-possession sale, as I apprehend it, on 8 December 2007, that is, before the proceedings were heard and determined by Coleman J in the Family Court. It would seem, in passing, that the XX XXXX XXXX Fairfield West property was also cross-secured against a property at XXXX, Denham Court, and ultimately, it would seem, it is conceded, that in accordance with orders made in December of 2010, whether by slip rule or otherwise by Coleman J, the shortfall in the sale proceeds of the Fairfield West property and the mortgage over that property were paid by the third defendant in the sum of just over $52,000. The written reasons for judgment delivered by Coleman J were detailed. I note, in relation to those written reasons, that his Honour considered the contribution based entitlements of the parties throughout the course of their marriage... I note that his Honour also made findings in relation to the post-separation contributions of the parties... [His Honour] says these words...: "The husband's evidence in relation to financial matters in the post-separation period was vague and the Court is not able to find with precision how he dealt with his funds." Nonetheless, his Honour did make an adjustment in the husband's favour of point five per cent, as I apprehend it, in his reasons for judgment. ... It is clear that the third defendant provided significant details, and I am reading here from pages five through to eleven of the extracts from her affidavit, of contributions that were made towards the [Fairfield West] property. I also note that in paragraph forty-seven of the plaintiff's affidavit in those proceedings, that he referred to the Fairfield property although he did not give any quantification in those proceedings of the additional contributions that he says he made in relation to that property. On appeal, and obviously the plaintiff was entitled to appeal Coleman Js decision, as Mr Maddox rightly points out, on appeal there was no ground of appeal in relation to any incorrect finding by Coleman J in relation to either contributions during the course of the relationship to the Fairfield West property, or indeed, post-separation contributions. In any case, as I understand it, that appeal was unsuccessful insofar as the plaintiff was concerned. However, there was a cross-appeal and it seems that the cross-appellant was, indeed, successful in a proportion of her cross-appeal. ... I have regard to s 81 of the Family Law Act ... the judgment of the proceedings that I have read was an application, as I understand it, under s 79: "--the Court shall, as far as practical, make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them." ... I note that the issue of abuse of process ... that in the past Courts have held that an abuse of process arises where there is a pursuit of proceedings involving re-litigation of matters already determined, or which should have been determined in prior proceedings. I am satisfied that the issue of what has been termed in Mr Wilson's submissions, "loss D" [should read Loss B], that is, the unequal and extra mortgage payments made by him prior to - I should say - the judgment of Coleman J, should properly have been agitated in those proceedings. I am satisfied that the issue of the contributions to that particular asset was considered in those proceedings by his Honour, and had Mr Costa, the plaintiff been unhappy with the way that had been dealt with by his Honour in his judgment, it should properly have been dealt with in his appeal to the Full Court of the Family Court. IN THOSE CIRCUMSTANCES I AM SATISFIED THAT THE PROCEEDINGS AS AGAINST THE THIRD DEFENDANT ARE AN ABUSE OF PROCESS OF THE COURT AND, IN THOSE CIRCUMSTANCES, I WILL GRANT THE NOTICE OF MOTION AND SUMMARILY DISMISS THE PROCEEDINGS AS AGAINST THE THIRD DEFENDANT." 35What was in dispute before the Magistrate was whether Loss B, the unequal and extra mortgage repayments made by Patrick Costa in relation to the Fairfield property were the subject of res judicata or issue estoppel. The Magistrate had to be satisfied that it was clear that Loss B had either previously been determined in the Family Court or alternatively, it could and should have been litigated in the Family Court. 36The Magistrate referred to comments by Coleman J about Mr Costa's evidence in relation to financial matters in the post separation period. Coleman J referred to Mr Costa's evidence as being vague and that the Court was not able to find with precision how Mr Costa dealt with his funds. Nonetheless, the Magistrate made a finding that Coleman J did make an adjustment in Mr Costa's favour of point five per cent. 37The Magistrate noted that in the Family Court proceedings Mr Costa, in his affidavit at [47], referred to the Fairfield West property but he did not give any quantification of the additional contributions that he says he made in relation to that property (T7). 38The Magistrate commented that under s 79 of the Family Law Act as far as practical the Court shall make orders as will finally determine the financial relationship between the parties. His Honour then concluded that he was satisfied that the issue of the contributions regarding the Fairfield West property was considered by Coleman J in the Family Court proceedings. Further, the Magistrate stated that had Mr Costa been unhappy with the way the matter had been dealt with by Coleman J in his judgment, it should have properly been dealt with in his appeal to the Full Court of the Family Court. Mr Costa did appeal. Mrs Costa cross-appealed. Mr Costa's appeal was unsuccessful. 39The Magistrate made a finding that Coleman J did make an adjustment in Mr Costa's favour of point five per cent in relation to the Fairfield West property and that the unequal and extra mortgage repayments were dealt with by the Family Court. Even if that was incorrect, the plaintiff should have had the issue of unequal and extra mortgage repayments determined by the Family Court. True it is that Mr Costa and Mrs Costa made unequal mortgage repayments after the Family Court hearing but they would have known whether they were going to make payments in the future and an adjustment could have been made in relation to them. 40It is my view that the Magistrate's decision is correct. The plaintiff's claim against Margaret Costa is the subject of res judicata or issue estoppel. There is no error as to law. 41The appeal is dismissed. The decision of his Honour Magistrate Feather dated 11 April 2012 is affirmed. The amended summons filed 26 July 2012 is dismissed. 42Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the third defendant's costs as agreed or assessed.

The Court orders that: (1) The appeal is dismissed. (2) The decision of his Honour Magistrate Feather dated 11 April 2012 is affirmed. (3) The amended summons filed 26 July 2012 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

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