Kedis and Kedis - [2015] FCCA 3215

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEDIS & KEDIS

[2015] FCCA 3215

Catchwords:
FAMILY LAW – Property orders – costs – compensation and/or restitution – as a result of conduct of the husband – orders sought by the wife – orders made upon application of wife.

Legislation:

Family Law Act 1975, ss.80, 106A, 117

Applicant:

MR KEDIS

Respondent:

MS KEDIS

File Number:

MLC 2787 of 2013

Judgment of:

Judge Hartnett

Hearing date:

21 August 2015

Date of Last Submissions:

28 August 2015 (husband)

31 August 2015 (wife)

Delivered at:

Melbourne

Delivered on:

4 December 2015

REPRESENTATION

Counsel for the Applicant:

Ms Tiecher

Solicitors for the Applicant:

Mulligan & Associates

Counsel for the Respondent:

Mr Levine

Solicitors for the Respondent:

Jeanne Gorman Barristers & Solicitors

THE COURT ORDERS THAT:

From the monies held in trust on behalf of the husband by the solicitors for the wife there be a further payment out to the wife in the total sum of $20,000 being:-
(a)$10,000 toward reimbursement of legal costs incurred by the wife and not covered by previous costs orders or payment of costs and/or disbursements in respect of the conduct of the husband; and
(b)$10,000 by way of costs reserved on 6 February 2015 and the costs of this proceeding.
The wife pay to the husband an amount of $500 in reimbursement of monies expended by her on repairs to the former matrimonial home but such sum be offset against the monies payable by the husband to the wife pursuant to order number 1 of these orders.
Otherwise and as soon as practicable all monies held in trust on behalf of the husband by the solicitors for the wife be paid out to the husband save that an amount of $5,000 can continue to be held in trust pending determination of any application filed or to be filed within 28 days hereof in the Family Court of Australia by the wife seeking a taxation and/or payments of costs by the husband to her as ordered in the Family Court of Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2787 of 2013

MR KEDIS

Applicant

And

MS KEDIS

Respondent

REASONS FOR JUDGMENT

Final parenting and property orders were made in these proceedings on 29 November 2013. I refer to the judgment published for a history as to the matter. Various applications then followed, including an appeal by the husband against the orders made on 29 November 2013, such appeal being dismissed by the Full Court of the Family Court of Australia on 2 July 2014.
Pursuant to the orders of 29 November 2013, the real property situate at Property A in the State of Victoria (“the matrimonial home”) was to be transferred from the sole proprietorship of the husband to that of the wife. The real property situate at Property H in the State of…

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 Kedis and Kedis 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: [2015] FCCA 3215
Decision Date: 4 December 2015

CaseChat Overview and Summary

In the matter of *Kedis and Kedis*, Judge Hartnett considered a dispute between a husband and wife concerning the distribution of funds held in trust by the wife's solicitors. The wife sought reimbursement for legal costs and further costs, while the husband sought the release of funds held in trust.

The court was required to determine the appropriate allocation of the funds held in trust, specifically addressing the wife's claims for reimbursement of legal costs and the payment of reserved costs, as well as the husband's entitlement to the remaining funds. The court also had to consider an amount to be held in trust pending further applications by the wife regarding taxation and payment of costs.

Judge Hartnett ordered that $20,000 be paid from the trust monies to the wife, comprising $10,000 for reimbursement of legal costs and $10,000 for reserved costs and the costs of the present proceeding. The wife was also ordered to pay the husband $500 for repairs to the former matrimonial home, to be offset against the monies payable to her. The remaining trust monies were to be paid to the husband, with the exception of $5,000 to be held pending any application by the wife within 28 days for taxation and/or payment of costs by the husband.

Orders

Orders of the court

From the monies held in trust on behalf of the husband by the solicitors for the wife there be a further payment out to the wife in the total sum of $20,000 being:-

(a) $10,000 toward reimbursement of legal costs incurred by the wife and not covered by previous costs orders or payment of costs and/or disbursements in respect of the conduct of the husband; and

(b) $10,000 by way of costs reserved on 6 February 2015 and the costs of this proceeding.

The wife pay to the husband an amount of $500 in reimbursement of monies expended by her on repairs to the former matrimonial home but such sum be offset against the monies payable by the husband to the wife pursuant to order number 1 of these orders.

Otherwise and as soon as practicable all monies held in trust on behalf of the husband by the solicitors for the wife be paid out to the husband save that an amount of $5,000 can continue to be held in trust pending determination of any application filed or to be filed within 28 days hereof in the Family Court of Australia by the wife seeking a taxation and/or payments of costs by the husband to her as ordered in the Family Court of Australia.

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.