Trebiano and Trebiano (No 2) - [2019] FamCAFC 72

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

2017

APPEAL NUMBER:

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…

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.

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Details

Case: [2019] FamCAFC 72
Decision Date: 26 April 2019

CaseChat Overview and Summary

The appeal in Trebiano and Trebiano (No 2) involved the parties, who were a former couple, before the Family Court of Australia. The primary issue was the division of property following their separation, specifically the valuation and distribution of a property titled under both names. The court was also tasked with determining the respective contributions of each party to the property, and whether the lower court had erred in its valuation and division of the assets.

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

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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