Grech v Deak-Fabrikant (No 4)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 4930

BETWEEN:

STEPHEN PHILLIP GRECH and JELVIE GRECH	Plaintiffs
- and -
LARISSA DEAK-FABRIKANT	First Defendant
REGISTRAR OF TITLES	Second Defendant
AND BETWEEN:
LARISSA DEAK-FABRIKANT	Plaintiff by Counterclaim
- and -
STEPHEN PHILLIP GRECH and JELVIE GRECH	First and Second Defendants by Counterclaim
PAUL GRECH	Third Defendant by Counterclaim

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2015
DATE OF JUDGMENT:	10 February 2016
CASE MAY BE CITED AS:	Grech v Deak-Fabrikant (No 4)
MEDIUM NEUTRAL CITATION:	[2016] VSC 35

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COSTS – Costs of trial – Claim for an adjustment order under s 45(1) of the Relationships Act 2008 (Vic) and claim for interest in properties pursuant to an express and/or constructive trust – Plaintiff by counterclaim successful in obtaining adjustment order – Defendants by counterclaim unreasonably denied the existence of the domestic relationship – Plaintiff by counterclaim forced to additional cost and expense by reason of the defendants by counterclaim’s denial of the relationship – Sections 23 and 29 of the Civil Procedure Act 2010 (Vic) considered.

COSTS – Calderbank offers by defendants by counterclaim – Whether unreasonable for plaintiff to reject the offers – Relevant factors – Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435 applied – Magnitude of discrepancy between amount of offer and outcome of trial a relevant factor.

COSTS – Relevance of breaches of the Civil Procedure Act 2010 (Vic) to the exercise of discretion as to costs.

LEGAL PRACTITIONERS - Lien over proceeds of any settlement or judgment in favour of former solicitor – Firth v Centrelink (2002) 55 NSWLR 451 and Simpson v Rowe [2011] VSC 149 applied.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs/First and Second Defendants by Counterclaim	Appeared in person
For the First Defendant/Plaintiff by Counterclaim	Mr D K Carlile	Altona Legal
For the Third Defendant by Counterclaim	Mr A G E Robinson	Clancy Triado
For Berry Family Law	Mr G Devries	Berry Family Law

HER HONOUR:

1. On 28 October 2015,[1] I ruled that the claims in this proceeding ought to be determined as follows:

   [1]See [2015] VSC 581 [5]. The mode of address and defined terms in this judgment mirror those used in this judgment.

(a)   in relation to the claims made by Stephen and Jelvie Grech:

(i)         the caveats over the Altona property, the Errol Street property, the Speakmen Street property and the Ballarat Road property be removed;

(ii)       an order that Stephen Grech have possession of the Altona property, such order to be stayed for ninety days;

(iii)      there be directions for the further hearing of the claims made by Stephen and Jelvie Grech for damages and/or compensation in the event they seek to press those claims; and

(b)   in relation to the claims made by Ms Deak-Fabrikant:

(i) the transfer of the Sanctuary Lakes property from Paul Grech to Jelvie Grech be set aside pursuant…