Liatos & Silid - [2009] FamCA 674

FAMILY COURT OF AUSTRALIA

LIATOS & SILID

[2009] FamCA 674

FAMILY LAW – PRACTICE AND PROCEDURE – Restraining Wife’s solicitor from acting – Matters in the Supreme Court and Family Court – Previous personal relationship between Respondent and solicitor – No basis for disqualification

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings to Supreme Court – Application dismissed – Preferable for Family Court Registrar to assess Family Court costs

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings to Melbourne or Brisbane Registries – To be case managed in Brisbane

FAMILY LAW – COSTS – Between solicitor and client – Extension of time to file a notice disputing costs – Extension allowed as justice of the case demands it – Respondent to file itemised accounts – Stay assessment pending determination of validity of costs agreement in Supreme Court

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

MCH & Y & Y [2006] FamCA 610
Garrey & Crosby [2007] FamCA 696
In the Marriage of Tormsen (1993) FLC 92-392
Kallinicos & Anor v Hunt & Anor (2005) NSWSC 1181
McMillan & McMillan (2000) FLC 93-048
Strudwick & Johnson (Unreported, Family Court of Australia, Lindenmayer J, 7 March 1996)

APPLICANT:

Ms Liatos

RESPONDENT:

Mr Silid

FILE NUMBER:

SYC

579

2007

DATE DELIVERED:

17 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Barry J

HEARING DATE:

13 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jarrett of Counsel appeared for the Applicant

SOLICITORS FOR THE APPLICANT:

Marello Lawyers & Associates

COUNSEL FOR THE RESPONDENT:

The Respondent appeared in person

Mr Cook of Counsel appeared for Ms Marello

Orders

IT IS ORDERED THAT:

The Respondent is to deliver an itemised account of all fees rendered to the Applicant, to the extent that he has not already done so, within twenty-eight (28) days after the New South Wales Supreme Court’s decision is delivered on the application to set aside the costs agreement dated 6 August 2007.
The Respondent is to ensure that all itemised accounts rendered to the Applicant are numbered, such that each item for which a charge has been made, whether by way of fees or disbursement, is readily identifiable.
The time within which the Applicant can serve a notice disputing itemised costs under r 6.2.3 of Schedule 6 be extended by twenty-one (21) days from the date of delivery of the itemised numbered account.
The proceedings are to be re-listed for assessment by a Registrar of this Court after the itemised account of fees has been delivered in accordance with the New South Wales Supreme Court’s determination and after the Applicant has filed her Notice Disputing Costs.
Costs of and incidental to the current proceedings are reserved.
Each party be at liberty to apply to re-list on forty-eight (48) hours notice to the other parties.
The Respondent’s application to restrain the Applicant Wife’s solicitor from acting in the proceedings is dismissed.
The Respondent’s application for the proceedings to be…

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.

Continue reading Liatos & Silid

Details

AGLC: Liatos & Silid [2009] FamCA 674
Case: [2009] FamCA 674
Decision Date: 17 July 2009

CaseChat Overview and Summary

In proceedings before Barry J of the Family Court, the Respondent sought to restrain the Applicant Wife's solicitor from acting and to transfer the proceedings to the Supreme Court. The dispute also involved an application for an extension of time to file a notice disputing costs, and the assessment of those costs.

The court was required to determine whether the Applicant Wife's solicitor should be disqualified from acting due to a previous personal relationship between the Respondent and the solicitor. Additionally, the court had to consider the merits of transferring the proceedings to the Supreme Court, and whether to grant an extension of time for the Applicant to dispute the solicitor's costs, and how those costs should be assessed.

Barry J dismissed the application to restrain the solicitor, finding no basis for disqualification. The application to transfer the proceedings to the Supreme Court was also dismissed, with the court deeming it preferable for a Family Court Registrar to assess the Family Court costs. The court allowed an extension of time for the Applicant to file a notice disputing the itemised costs, as the justice of the case demanded it. The assessment of costs was stayed pending the determination of the validity of a costs agreement in the Supreme Court. The court ordered the Respondent to deliver itemised and numbered accounts of fees within twenty-eight days of the Supreme Court's decision, and extended the time for the Applicant to serve a notice disputing these costs by twenty-one days from delivery. The proceedings were to be relisted for assessment by a Registrar after these steps were completed. Costs of the current proceedings were reserved.

Orders

Orders of the court

IT IS ORDERED THAT:

The Respondent is to deliver an itemised account of all fees rendered to the Applicant, to the extent that he has not already done so, within twenty-eight (28) days after the New South Wales Supreme Court’s decision is delivered on the application to set aside the costs agreement dated 6 August 2007.

The Respondent is to ensure that all itemised accounts rendered to the Applicant are numbered, such that each item for which a charge has been made, whether by way of fees or disbursement, is readily identifiable.

The time within which the Applicant can serve a notice disputing itemised costs under r 6.2.3 of Schedule 6 be extended by twenty-one (21) days from the date of delivery of the itemised numbered account.

The proceedings are to be re-listed for assessment by a Registrar of this Court after the itemised account of fees has been delivered in accordance with the New South Wales Supreme Court’s determination and after the Applicant has filed her Notice Disputing Costs.

Costs of and incidental to the current proceedings are reserved.

Each party be at liberty to apply to re-list on forty-eight (48) hours notice to the other parties.

The Respondent’s application to restrain the Applicant Wife’s solicitor from acting in the proceedings is dismissed.

The Respondent’s application for the proceedings to be transferred to the Supreme Court is dismissed.

NOTATION:

The Registrar forward a copy of these reasons when settled to the Registrar, Supreme Court of New South Wales, for the attention of Justice ….

10.

The assessment of the costs in this matter are stayed pending the determination in the Supreme Court of New South Wales on the application to set aside the costs agreement of August 2007.

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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