Gibbs and Gibbs and Ors - [2017] FamCA 7

FAMILY COURT OF AUSTRALIA

GIBBS & GIBBS & ORS

[2017] FamCA 7

FAMILY LAW – PRACTICE & PROCEDURE – CASE STATED – where the applicant seeks a case be stated to the Full Court of the Family Court of Australia – where the proposed case stated relates to a claim against his former solicitors – where those solicitors drafted a financial agreement which was subsequently set aside by the Family Court on the basis that it was uncertain in its terms – where the case stated relates to what defences might be open to the solicitors in defending a negligence claim – whether the solicitors raising a defence that the financial agreement was not uncertain would amount to an abuse of process – where the application for a case stated is dismissed.

Family Law Act 1975 (Cth)

Bakhtiari & Minister for Immigration Multicultural and Indigenous Affairs [2002] FamCA 767
Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41
In the marriage of CE Daff (dec) [1984] FLC 91-516
In the marriage of Mullane (1980) 43 FLR 201
Kruger v Commonwealth; Bray v Commonwealth (1995) 69 ALJR 885
O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698

Paul & Paul [2011] FamCA 672

Pedrana & Pedrana [2012] FamCA 347
Re Alcoota Land Claim No 146 (1998) 82 FCR 391
Rogers v Roche [2016] QCA 340
State Bank of New South Wales v Alexander Stenhouse [1997] Aust Torts Reports 81-423
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

APPLICANT:

Mr Gibbs

1st RESPONDENT:

Ms Gibbs

2nd RESPONDENT:

Mr Gleist

3rd RESPONDENT:

Mr Blake

4th RESPONDENT:

Mr Geller

5th RESPONDENT:

Mr Dimarco

FILE NUMBER:

BRC

10882

2013

DATE DELIVERED:

17 January 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

20 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cavanagh SC with Ms Giacomo

SOLICITOR FOR THE APPLICANT:

Manning Lawyers

1^ST RESPONDENT:

Appearance excused

COUNSEL FOR THE 2^ND, 3^RD 4^TH AND 5^TH RESPONDENTS

Mr Jennings

SOLICITOR FOR THE 2^ND,3^RD,4^THAND 5^TH

RESPONDENTS:

HWL Ebsworth

Orders

The Application in a Case filed by the Applicant on 29 November 2016 is dismissed.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.

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

IT IS NOTED

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.

Keep reading for free

Create a free CaseChat account to read Gibbs and Gibbs and Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FamCA 7
Decision Date: 17 January 2017

CaseChat Overview and Summary

In *Gibbs and Gibbs and Ors*, Carew J of the Supreme Court of Queensland considered an application filed by the applicant. The precise nature of the dispute and the respondent parties are not detailed in the provided text, beyond the applicant's filing of an "Application in a Case".

The primary legal issue before the court was the determination of the application itself. Following this, the court was required to consider the appropriate orders regarding the costs associated with the application, should the parties be unable to reach an agreement on this matter.

Carew J dismissed the applicant's application. The court then outlined a process for determining costs. If the parties could not agree on costs within 21 days, they were to file written submissions within a further 14 days, with the issue to be determined in chambers unless a party contended otherwise. If the parties did reach an agreement on costs, they were at liberty to file joint minutes of consent.

Orders

Orders of the court

The Application in a Case filed by the Applicant on 29 November 2016 is dismissed.

In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:

(a) Each party file within a further 14 days written submissions in respect of that issue; and

(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.

In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.