FAMILY COURT OF AUSTRALIA
| TREBIANO & TREBIANO (NO. 2) | [2019] FamCAFC 72 |
| FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly successful – Where the appeal succeeded on a point of law – Where the appeal was allowed and the matter was remitted for hearing – Where the circumstances justify a different order to the general principle that each party bears its own costs – Where the appellant has not provided the Court with a schedule of costs – Financial circumstances of the parties – Where the respondent is to pay the appellant’s costs of the appeal as agreed or in default of agreement as assessed – Where the cost order made by the Court precludes the appellant from receiving a Costs Certificate – Where it is not appropriate for the Court to grant costs certificates to the parties under s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) ss 117(1), 117(2A), 117(2A)(a), 117(2A)(g) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9(1), 9(1)(a) |
| Trebiano & Trebiano [2019] FamCAFC 16 |
| APPELLANT: | Mr Trebiano |
| RESPONDENT: | Ms Trebiano |
| FILE NUMBER: | PAC | 1251 | of | 2017 |
| APPEAL NUMBER: | EA | 76 | of | 2018 |
| DATE DELIVERED: | 26 April 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | McClelland DCJ, Aldridge & Austin JJ |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2018 |
| LOWER COURT MNC: | [2018] FamCA 344 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Clifford |
| SOLICITOR FOR THE APPELLANT: | Brander Smith McKnight Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Maclarens Lawyers |
Orders
The respondent is to pay the appellant’s costs of the appeal, as agreed, or in default of agreement, as assessed.
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 Trebiano & Trebiano 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 or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 76 of 2018
File Number: PAC 1251 of 2017
| Mr Trebiano |
Appellant
And
| Ms Trebiano |
Respondent
REASONS FOR JUDGMENT
On 13 February 2019 we allowed the appeal in this matter, set aside the orders made by the primary judge and remitted the matter for rehearing (Trebiano & Trebiano [2019] FamCAFC 16).
The appellant now seeks an order that the respondent pay his costs of the appeal in the sum of $61,608.05. He also seeks a certificate for the costs of the rehearing pursuant to s 8 of…
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- Case
- [2019] FamCAFC 72
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the interpretation of the Family Law Act 1975, specifically sections concerning the equitable division of property. The court had to determine whether the primary judge correctly applied the statutory principles and whether the valuation of the property was fair and reasonable. Additionally, the court assessed whether the contributions of the parties, both financial and non-financial, were appropriately considered in the division of the assets.
In delivering the judgment, the court meticulously reviewed the evidence presented and the findings of the primary judge. It was determined that the primary judge had erred in the valuation of the property, leading to an inequitable division of assets. The court found that the contributions of the appellant were undervalued, and as a result, the property should be revalued and the division reconsidered. The appeal was allowed on the basis that the property division was not equitable and required rectification.
The court ordered that the respondent pay the appellant’s costs of the appeal, as agreed between the parties, or in the event of no agreement, as assessed by the court. This order ensures that the appellant is compensated for the legal expenses incurred in pursuing the appeal, reflecting the court's finding in their favour.
Orders
Orders of the court
1.
The respondent is to pay the appellant’s costs of the appeal, as agreed, or in default of agreement, as assessed.
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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