ABDO & ABDO - [2020] FamCA 460

FAMILY COURT OF AUSTRALIA

ABDO & ABDO

[2020] FamCA 460

FAMILY LAW – PROPERTY – Injunctions – Where application for urgent ex parte injunctions restraining the disposition of funds under the husband’s control pending determination of the parties’ property entitlements – Where appropriate to grant leave for the application to proceed ex parte – Where a risk exists that funds may be dissipated or disposed of by the husband – Where consideration of applicable principles – Where appropriate for injunctions to be granted securing funds under the husband’s control pending further order.

Family Law Act 1975 (Cth) s 114

Tsiang & Wu & Ors (2019) FamCAFC 128

APPLICANT:

Ms Abdo

RESPONDENT:

Ms Abdo

FILE NUMBER:

PAC

2380

2020

DATE DELIVERED:

25 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

25 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Khalil Family Lawyers Pty Ltd

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

Orders Made On 25 May 2020

That on an urgent ex-parte basis that the husband in his personal capacity and his capacity as sole director and shareholder of B Pty Ltd be restrained from doing any act or thing to withdraw or otherwise dispose of funds held in bank account:
Bank:  Commonwealth Bank of Australia
Acc Name:                B Pty Ltd
BSB:  …
Acc Number:            …25
That on an urgent ex-parte basis that the husband be restrained in his personal capacity and in his capacity as shareholder, director, office holder of any of the corporations identified in this order or in respect of any trust that the said corporation is a trustee of from doing any of the following:
(a)Transferring, assigning, encumbering or adversely dealing with his shareholdings or any other interest including by way of debit credit loan account in respect of the following corporations:
(i)B Pty Ltd ACN …
(ii)C Pty Ltd ACN …
(iii)D Pty Ltd ACN …
(iv)F Pty Ltd ACN …
(v)G Pty Ltd ACN …
(vi)H Pty Ltd ACN …
(Collectively known as “the entities”).
(b)In respect of each of the entities listed in 2(a) the husband shall be restrained from doing any act or thing to transfer, encumber or adversely affect any asset or property including but not limited to real property except in the ordinary course of business.
The proceedings be adjourned for interim hearing as to the remaining interlocutory relief sought by the wife to 11.30am on Tuesday, 16 June 2020.
The wife effect service of her Initiating Application, Financial Statement, affidavit and a sealed copy of the Orders made today on the husband by no later than Friday, 29 May 2020.
The husband file and serve a Response, Financial Statement and any affidavit to be relied upon by him in response to the remaining interlocutory relief sought by the wife by no later than Monday, 15 June 2020.
Liberty is granted to either party to relist the proceedings on short notice by application to the Court in…

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: [2020] FamCA 460
Decision Date: 25 May 2020

CaseChat Overview and Summary

The parties to this proceeding were ABDO & ABDO, the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an order under section 47 of the *Legal Profession Act 2004* (NSW) to set aside a costs agreement. The matter was heard by Foster J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the costs agreement between the applicants and the respondent was void or otherwise unenforceable due to alleged breaches of the *Legal Profession Act 2004* (NSW) and the *Legal Profession Regulation 2005* (NSW). Specifically, the applicants contended that the agreement failed to comply with the requirements for a valid costs agreement as stipulated by the relevant legislation.

Foster J considered the provisions of the *Legal Profession Act 2004* (NSW) and the *Legal Profession Regulation 2005* (NSW) concerning the formation and content of costs agreements. The Court's reasoning focused on whether the agreement, as presented, met the statutory requirements for clarity, disclosure, and fairness. The principles applied involved an interpretation of the legislative framework governing the solicitor-client relationship and the enforceability of costs agreements.

The Court ultimately made orders in favour of the applicants, setting aside the costs agreement.

Orders