| 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:
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…
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- Case
- [2016] VSC 35
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CaseChat Overview and Summary
The court found that the plaintiff's rejection of the defendants' Calderbank offers was unreasonable, applying the principles from Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2). The significant discrepancy between the offer and the trial outcome was a key factor in this determination. The court also examined the relevance of breaches of the Civil Procedure Act 2010 (Vic) to the exercise of discretion regarding costs. The court concluded that the defendants' unreasonable denial of the relationship and the additional costs incurred by the plaintiff justified a costs order in the plaintiff's favour.
The court ordered the defendants to pay the plaintiff's costs of the trial, including the costs of the plaintiff's counterclaim, as the defendants had unreasonably denied the existence of the domestic relationship. The court held that the magnitude of the discrepancy between the offers and the trial outcome, along with the unreasonable denial of the relationship, justified the costs order. Additionally, the court considered the breaches of the Civil Procedure Act 2010 (Vic) in its exercise of discretion regarding costs.
The final orders included that the defendants were to pay the plaintiff's costs of the trial, including the costs of the plaintiff's counterclaim. The court also considered the lien over proceeds of any settlement or judgment in favour of the former solicitor, applying the principles from Firth v Centrelink and Simpson v Rowe. This decision underscored the importance of reasonable conduct in proceedings and the consequences of unreasonable denials in domestic relationship disputes.
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