Abeles and Brott - [2007] FamCA 885

FAMILY COURT OF AUSTRALIA

ABELES & BROTT

[2007] FamCA 885

FAMILY LAW – Costs

Family Law Act 1975 (Cth)

APPLICANT:

Estate of the late Lady Katelin Abeles (Yvonne Muller as executrix)

RESPONDENT:

Issac Brott

SYF

8204

1999

DATE DELIVERED:

13 July 2007

PLACE DELIVERED:

Sydney Registry

JUDGMENT OF:

Moore J

WRITTEN SUBMISSIONS RECEIVED:

11 May, 30 May & 4 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Mark Twigg

SOLICITOR FOR THE RESPONDENT:

Mr Issac Brott

Orders

The respondent pay to the solicitors for the applicant costs fixed in the sum of $19,700 on or before one (1) month from this date.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF8204 of 1999

Estate of the late Lady Katelin Abeles (Yvonne Muller as executrix)

Applicant

And

Issac Brott

Respondent

REASONS

Proceedings

This is the determination of several costs claims related to certain proceedings between the parties.

Brief background

The substantive proceedings to which the claims relate have a long history which is set out more particularly elsewhere and for present purposes a potted version will suffice. A dispute arose between the respondent solicitor and a former client, now deceased, about costs and disbursements incurred during the month the solicitor acted for her. Ultimately the bill rendered to the client was reduced by the solicitor from over $240,000 [calculated according to a costs agreement which was set aside at one point by consent] to over $100,000 [calculated according to scale under the Rules of Court]. A Deputy Registrar conducted a taxation which proceeded over six days for a protracted period commencing April 2001. For taxation purposes an amended bill amounting to $100,885 was presented by the solicitor. On 24 April 2003 the Deputy Registrar issued a certificate of taxation in the sum of $35,276. This was followed by an application by the client for the costs of taxation and subsequently by the solicitor’s application for review of the taxation decision. The review was listed in due course for hearing before me and I made orders on 18 March 2005 dismissing it. On 14 April 2005 the applicant filed a fresh application seeking costs but it was adjourned at the time. That was because the solicitor had by then filed an appeal. Judgment was delivered by the Full Court [Faulks DCJ, Kay & Boland JJ] on 31 January 2007 and the appeal was allowed in part. The Full Court orders provide for the certificate of taxation to be amended by increasing the sum from $35,276 to $42,486, an increase of $7,210. That increase related to allowance for counsel’s fees for Ms Bryant QC [the Chief Justice of this Court] and Dr Ingleby, as well as part of the expense incurred by the solicitor for searches. The appeal determined, the question of costs was revived. For reasons I gave in a short judgment published on 27 April and will not now repeat, I vacated the date allocated for the hearing of the costs claims and made directions for submissions on those applications…

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: [2007] FamCA 885
Decision Date: 13 July 2007

CaseChat Overview and Summary

The case of *Abeles and Brott* concerned a dispute between the parties, Abeles and Brott, heard before Moore J. The precise nature of the dispute is not detailed in the provided text, but it involved a legal matter requiring judicial determination.

The central legal issue before Moore J was to determine the rights and obligations of the parties in relation to the subject matter of their dispute. This would have involved an examination of the relevant legal principles and any applicable legislation or contractual terms governing their relationship.

Moore J's reasoning and the legal principles applied would have been directed towards resolving the dispute based on the evidence presented and the applicable law. The judgment would have articulated the court's findings on the legal issues and provided the basis for its final determination.

Orders