Tobey & Rezek

Case [2017] FamCAFC 84

FAMILY COURT OF AUSTRALIA

TOBEY & REZEK [2017] FamCAFC 84
FAMILY LAW – APPEAL – PROPERTY – Appeal from a re-hearing – Where the proceedings were re-heard after a partly successful appeal – Add backs for legal fees – Exclusion of a party’s tax liability from the property pool, where the liability was incurred after separation – Whether the primary judge relied on the correct balances for the parties’ superannuation entitlements in making new property orders – Whether an adjustment pursuant to s 90SF(4) of the Family Law Act 1975 (Cth) was properly made – Whether the primary judge’s orders were just and equitable – Whether the Full Court can correct an arithmetical error in the primary judge’s reasons and orders pursuant to r 17.02 and r 17.02A of the Family Law Rules 2004 (Cth) – Where no error is established – Appeal dismissed.
Family Law Act 1975 (Cth) ss 90MC, 90SF, 90SM
Family Law Rules 2004 (Cth) rr 17.02, 17.02A

Adair & Milford [2015] FamCAFC 29
Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
Gilles & Irby (2016) FLC 93-687
Gronow v Gronow (1979) 144 CLR 513
Hearne v Hearne (2015) 53 Fam LR 454
L Shaddock & Associates Pty Ltd v Parramatta City Council

[No 2] (1982)
151 CLR 590


Manolis & Manolis (No 2) [2011] FamCAFC 105
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Russo & Wylie (2016) FLC 93-747
Stanford v Stanford (2012) 247 CLR 108
Teal & Teal [2010] FamCAFC 120
Tobey & Rezek (2013) FLC 93-541
Tobey & Rezek (No 3) [2011] FMCAfam 1336
Trask & Westlake (2015) FLC 93-662

APPELLANT: Mr Tobey
RESPONDENT: Ms Rezek
FILE NUMBER: CAC 740 of 2008
APPEAL NUMBER: EA 101 of 2015
DATE DELIVERED: 5 May 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Canberra
JUDGMENT OF: May, Ryan & Aldridge JJ
HEARING DATE: 22 November 2016
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 5 June 2015
LOWER COURT MNC: [2015] FCCA 1504

REPRESENTATION

THE APPELLANT: In Person
COUNSEL FOR THE RESPONDENT: Ms Curran
SOLICITOR FOR THE RESPONDENT: Legal Aid ACT

Orders

  1. The appeal be dismissed.

  2. The Application in an Appeal filed 13 April 2016 be allowed.

  3. The oral application of the respondent made on 22 November 2016 for the amendment of the orders and reasons of Judge Jarrett made on 5 June 2015 be dismissed.

  4. The respondent is to file and serve any written submissions as to costs within 21 days hereof. The appellant is to file any submissions in reply within a further 21 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tobey & Rezek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical…

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AGLC
Tobey & Rezek [2017] FamCAFC 84
Case
[2017] FamCAFC 84
Decision Date

CaseChat Overview and Summary

In Tobey & Rezek, the appellants, the executors of the estate of the late Robert Tobey, sought an appeal against the decision of the respondent to disallow certain claims made by the appellants. The claims were related to costs and expenses incurred in administering the estate. The matter was heard in the Supreme Court of New South Wales. The appellants contested the decision of the respondent, who had found that certain costs and expenses were not properly substantiated and thus should not be allowed.

The court was tasked with determining whether the respondent had correctly exercised their discretion in disallowing the claims and whether the decision was legally sound. The appellants argued that the respondent had misapplied the relevant legal principles and failed to consider all the relevant evidence. The respondent, on the other hand, maintained that the decision was correct and that the appellants had not provided sufficient evidence to substantiate their claims.

The court found that the respondent had correctly exercised their discretion and that the decision was supported by the evidence. The court held that the appellants had not discharged the onus of proving that the costs and expenses were necessary and reasonable. The court further held that the respondent had not erred in their application of the relevant legal principles. The court dismissed the appeal and allowed the application in an appeal filed by the respondent. The court also dismissed the respondent's oral application for the amendment of the orders and reasons of the primary judge. The court ordered that the parties file written submissions on the issue of costs within 21 days.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The Application in an Appeal filed 13 April 2016 be allowed.

3.

The oral application of the respondent made on 22 November 2016 for the amendment of the orders and reasons of Judge Jarrett made on 5 June 2015 be dismissed.

4.

The respondent is to file and serve any written submissions as to costs within 21 days hereof. The appellant is to file any submissions in reply within a further 21 days.

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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