Elliott and Zova - [2009] FamCA 49

FAMILY COURT OF AUSTRALIA

ELLIOTT & ZOVA

[2009] FamCA 49

FAMILY LAW - COSTS - Costs claim by husband against wife’s former solicitor for costs relating to an application brought by the wife’s former solicitor that the husband's solicitors be authorised and directed to retain in their trust account funds held by them belonging to the wife pending the hearing and determination of the wife's former solicitor's claim against the wife the subject of proceedings in the Supreme Court of Queensland – Husband had no interest in the moneys in his solicitors’ trust account - Wife's former solicitor’s application that the moneys be retained based on a "fruits of litigation" claim - Wife's former solicitor's application for retention of the moneys brought after husband's solicitors had paid the moneys to the wife pursuant to court order – Wife’s former solicitor’s application for retention of the moneys subsequently discontinued - Husband's claim for costs dismissed – Wife’s former solicitor’s claim for costs also dismissed

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311 at [315]
Roam Australia Pty Ltd v Telstra Corporation Ltd [1997] FCA 980

APPLICANT:

Mr Elliott

RESPONDENT:

Mr Zova

FILE NUMBER:

BRF

747

2005

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

11 March 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Mr Carius

SOLICITORS FOR THE HUSBAND:

Hemming & Hart

MR ZOVA:

In person

ORDERS

The husband’s application for costs filed on 14 December 2007, including for his costs relating to that application, is dismissed.
Mr Zova’s application for costs filed on 18 January 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Elliott & Zova is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 747 of 2005

MR ELLIOTT

Applicant

And

MR ZOVA

Respondent

REASONS FOR JUDGMENT

Husband’s costs application and relevant background

By application in a case filed on 14 December 2007 Mr Elliott (the husband) seeks against Mr Zova the dismissal of an application in a case filed by him on 7 September 2007 and costs relating to that application.
Mr Zova is a solicitor. He conducts a sole practice. Until 15 February 2007, he had been the solicitor for Mrs Elliott (the wife) in proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) between her, the husband and other parties.
In August 2007, I gave judgment in those proceedings, and made an order that the net property and assets of the husband and the wife or either of them be divided to effect a division of 75% to the wife and 25% to the husband. The several paragraphs of that s 79 property order included (relevantly):
2The wife have:
(a)the balance proceeds of sale of the former matrimonial home at […], presently held in the trust accounts of Hemming & (sic) Hart and…

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 Elliott and Zova

Details

AGLC: Elliott and Zova [2009] FamCA 49
Case: [2009] FamCA 49
Decision Date: 5 February 2009

CaseChat Overview and Summary

In the matter of *Elliott and Zova*, heard before O'Reilly J, the dispute concerned applications for costs made by both the husband and Mr Zova. The husband's application was filed on 14 December 2007, and Mr Zova's application was filed on 18 January 2008.

The central legal issue before the court was whether either party was entitled to an order for costs in relation to their respective applications.

O'Reilly J dismissed both applications for costs. The reasons for this decision are not elaborated upon in the provided text, but the outcome indicates that neither party was successful in persuading the court to grant them an order for costs. Consequently, each party was ordered to bear their own costs in relation to these specific applications.

Orders

Orders of the court

The husband’s application for costs filed on 14 December 2007, including for his costs relating to that application, is dismissed.

Mr Zova’s application for costs filed on 18 January 2008 is dismissed.

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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