VIC Recovering Costs for Successfully Defending Caveat Removal?

[andre nikatina]

Hi Guys,

This is a little unusual here, After a break up with my former De-Facto, I took a caveat out on the house which was on sale.

The ex made a supreme court application for the removal of the caveat, during these proceedings a judge instructed a family court property division application be initiated, which I did.

At the conclussion of the supreme court hearing x amount was put aside in trust pending the family court hearing. Also very importantly, both my council and her council came to an agreement on costs and the Judge agreed to this agreement.

The agreement was to reserve the costs of the proceeding and wait until the family court proceeding concludes, if it turns out I did not have a caveatable interest and was not entitled to any share of the property then costs at the supreme court would follow that event and alternatively, if my caveatable interest was proven and property adjustment was made and I recieved a distribution then I would be back seeking costs at the supreme court on this matter. And on these terms the Judge reserved costs, gave liberty to apply and adjourned the case.

1.5 Years later we ended up settling with consent orders, part of the final orders were that I retain the money set aside at the supreme court hearing.
Now a lawyer on my behalf has filled the application for costs with the supreme court under liberty to apply and the opposite lawyers are absolutely against it saying that I am barred from bring any applications against my ex and all financial matters between us were determined and basically saying I forefitted my right to apply for costs of the supreme court caveat removal application.

The final family court orders have no mention at all of the supreme court hearing I speak off, my lawyer is not confident at all and thinks my chances are 50/50 .
I do not understand why that is, the agreement which is clearly laid out without controversy between the 2 barristers and evidenced in transcripts submitted to the court is very clear, the intentions were to return to the supreme court once the family court was resolved, surely they were aware that family court being resolved means final orders, so they cannot say that they had different intentions or meant something else from their statements.

Does anyone have experience with this type of scenario? and does anyone know any similar cases to reference and/or use as authorities? Does anyone know the actual laws that govern this scenario?

Thanks in advance

Andre

 

[Rod]

a lawyer on my behalf has filled the application for costs with the supreme court

This is OK.

the opposite lawyers are absolutely against it

Standard practice. If there is any chance to avoid costs for their client they will try.

Can't tell whether the Family Court needed to specify anything about supreme court costs. Your lawyer is the one best placed to advise you as he/she has all the paperwork.

 

[andre nikatina]

Rod,

Thank you for your reply, but it was not very helpful. Dont mean to be rude. I asked specific questions, you highlighted the obvious points that its ok to make an application and the opposing legal team will be in opposition.
I am interested in weather there is any precedents set in this type of scenario or if anyone has any first hand accounts of a similar situation.

Thank you

 

[Rod]

No problems, I understand your question has not been answered. Suppose it is my way of saying it is unlikely an experienced lawyer is going to want to comment on a case without seeing the actual orders. My experience (limited) with lawyers is that lawyers do not like to comment on cases they have no involvement with and even if they know of a similar case they will likely qualify the answer as saying it may not apply in your situation.

Your first order seems quite clear. I can't see anything in your post that puts aside the first order so in theory you should be OK.

Anyway, see what some of the more experienced people say. I may be surprised!

 

[Blessing]

As Rod said its hard to give a definite answer to your question. If i was looking at it from your client solicitor side

1. The order from the supreme court stated if the Family Court finds that you had an interest you get costs. This is the part where you read the wording of the orders properly, because the Family Court in your case has not made a finding, both parties have come to an agreement.

Both you and your ex (and possibly the solicitors if they were aware of the supreme court case) should have put an order addressing the issue of cost.

Your ex solicitors are also taking the view that when you signed the consent orders your forfeited your right to any further claims against your ex for property or anything related to property.

Your lawyer is right, if you take it to court its 50/50