The Federal Court has dismissed a Notice of Motion filed by Fitness First that sought to dismiss as incompetent an appeal from a disgruntled former gym member as to costs over a protracted legal battle.
Yolande Dubow had her Fitness First membership terminated in 2004 after the gym chain alleged she had damaged the floor of its Bond St Sydney gym when she dropped weights on it.
Dubow, who was the deputy registrar of the NSW Supreme Court at the time, claimed her termination was linked to the amount of time she was spending at the gym during that period. Dubow has previously said she would spend as much as 30 hours per week at the gym.
Dubow commenced action in the Consumer, Trader and Tenancy Tribunal for out of pocket expenses in excess of $20,000 and sought $10,000 for anxiety and distress.
She later withdrew her case, but associated wrangling regarding costs has gone all the way to the Federal Court.
In May this year, the Federal Magistares Court ordered Dubow to pay costs to Fitness First of $25, 594.32. Dubow had submitted that costs awarded against her should not exceed $6154.25. Dubow's appeal was dismissed by the Federal Court in June, but it ordered that the payment of costs be stayed until further order.
Fitness First then sought to have the matter re-listed last week, with a view to resolve its own Notice of Motion, filed in June. This motion sought to have Dubow's appeal "dismissed as incompetent".
In a judgment handed down yesterday, the Federal Court rejected the Notice of Motion filed by Fitness First and granted leave to Dubow to appeal the decision of the Federal Magistrate in May.
Judge Geoffrey Flick also found that it would be appropriate to reserve the question as to the costs of the present application and the Notice of Motion from Fitness First.
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