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 Paul & Paul [2011] FamCA 672 Pedrana & Pedrana [2012] FamCA 347 |
| 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 | of | 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 |
| 1ST RESPONDENT: | Appearance excused |
| COUNSEL FOR THE 2ND, 3RD 4TH AND 5TH RESPONDENTS | Mr Jennings |
| SOLICITOR FOR THE 2ND, 3RD, 4TH AND 5TH 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
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- Case
- [2017] FamCA 7
- Decision Date
CaseChat Overview and Summary
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
1.
The Application in a Case filed by the Applicant on 29 November 2016 is dismissed.
2.
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.
3.
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
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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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