Bain and Bain (No. 2) - [2013] FamCA 794

FAMILY COURT OF AUSTRALIA

BAIN & BAIN (NO. 2)

[2013] FamCA 794

FAMILY LAW – APPLICATION – Litigation funding – Where there are justifying circumstances – Where the financial matters of the parties are complex – Where the wife is unable to work due to illness – Where an order for litigation funding is made.

Family Law Act 1975 (Cth) s74, s79, s117(2), 117(2A).
Family Law Rules 2004 (Cth) Schedule 3.
Legal Profession Act 2007 (Qld) Schedule 2.

Marchant & Marchant [2012] FamCAFC 181.
Strahan & Strahan (2011) FLC 93-466.

APPLICANT:

Ms Bain

RESPONDENT:

Mr Bain

FILE NUMBER:

BRC

2481

2010

DATE DELIVERED:

18 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

2 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Baston

COUNSEL FOR THE RESPONDENT:

Mr Dick

SOLICITOR FOR THE RESPONDENT:

Mr Bain Lawyers

Orders

This Order becomes operative only upon the Wife engaging a solicitor for the purpose of these proceedings and upon that person filing and serving a Notice of Address for Service and confirming such retention in the matter in writing directed to the Husband.
Following compliance with the terms of Clause 1 above:
(a)within seven (7) days after any payment by or on behalf of the Husband of any money in payment of any account for legal advice and representation in these proceedings, howsoever rendered, the Husband pay or cause to be paid the same sum of money into the Trust Account of the solicitor for the Wife; or
(b)in the event that there is not any payment in a calendar month by or on behalf of the Husband of any money in payment of any account for legal advice and representation in these proceedings, howsoever rendered, the Husband pay or cause to be paid into the Trust Account of the solicitor for the Wife, by 4.00pm on the second day of the following month, the sum of $5,500.00 for each calendar month in which no payment is made by him for legal advice and representation in these proceedings.
Within twenty-four (24) hours after the payment by or on behalf of the Husband of any money referred to in Clause 2(a) the Husband cause to be given to the Wife’s solicitor a memorandum stating the amount or amounts so paid.
In the event that the Husband engages any solicitor other than one employed within a firm of solicitors in which he has an interest, howsoever defined, to provide to him legal advice and/or representation in these proceedings:
(a)all money paid by or on behalf of the Husband as referred to in Clause 2(a) is to be held in trust by such solicitor for the Husband and is not to be applied in payment for legal services provided to the Husband until such time as the same amount has been paid by or on behalf of the Husband to the solicitor for the Wife; and
(b)in the event that such payment to the solicitor for the Wife is…

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.

Continue reading Bain and Bain (No. 2)

Details

AGLC: Bain and Bain (No. 2) [2013] FamCA 794
Case: [2013] FamCA 794
Decision Date: 18 October 2013

CaseChat Overview and Summary

In *Bain and Bain (No. 2)*, Hogan J considered an application concerning the provision of legal costs in family law proceedings. The dispute involved the husband's obligation to fund the wife's legal representation.

The court was required to determine the terms and conditions under which the husband would contribute to the wife's legal expenses. Specifically, the court had to address the timing and method of payments, the circumstances under which payments would be made, and how these payments were to be applied towards the wife's legal costs and disbursements, including those of accountants engaged for business valuations.

Hogan J reasoned that the wife should be adequately represented to ensure a fair hearing. The court ordered that the husband's obligation to pay would commence upon the wife engaging a solicitor and that solicitor filing and serving a notice of address for service. Payments were to be made either directly to the wife's solicitor within seven days of the husband paying his own legal accounts, or, if no payments were made by the husband in a calendar month, a sum of $5,500 was to be paid by the second day of the following month. Further provisions were made for situations where the husband engaged a solicitor with whom he had an interest, requiring funds to be held in trust and potentially paid to the wife's solicitor if not paid directly. The payments were to be applied towards the wife's costs and disbursements, including those of accountants.

The court reserved the question of the categorisation of payments and the costs of the application to the trial judge.

Orders

Orders of the court

This Order becomes operative only upon the Wife engaging a solicitor for the purpose of these proceedings and upon that person filing and serving a Notice of Address for Service and confirming such retention in the matter in writing directed to the Husband.

Following compliance with the terms of Clause 1 above:

(a) within seven (7) days after any payment by or on behalf of the Husband of any money in payment of any account for legal advice and representation in these proceedings, howsoever rendered, the Husband pay or cause to be paid the same sum of money into the Trust Account of the solicitor for the Wife; or

(b) in the event that there is not any payment in a calendar month by or on behalf of the Husband of any money in payment of any account for legal advice and representation in these proceedings, howsoever rendered, the Husband pay or cause to be paid into the Trust Account of the solicitor for the Wife, by 4.00pm on the second day of the following month, the sum of $5,500.00 for each calendar month in which no payment is made by him for legal advice and representation in these proceedings.

Within twenty-four (24) hours after the payment by or on behalf of the Husband of any money referred to in Clause 2(a) the Husband cause to be given to the Wife’s solicitor a memorandum stating the amount or amounts so paid.

In the event that the Husband engages any solicitor other than one employed within a firm of solicitors in which he has an interest, howsoever defined, to provide to him legal advice and/or representation in these proceedings:

(a) all money paid by or on behalf of the Husband as referred to in Clause 2(a) is to be held in trust by such solicitor for the Husband and is not to be applied in payment for legal services provided to the Husband until such time as the same amount has been paid by or on behalf of the Husband to the solicitor for the Wife; and

(b) in the event that such payment to the solicitor for the Wife is not made within seven (7) days, the Husband is to direct his solicitor to pay fifty per cent (50 per cent) of the amount or amounts so held by them in trust to the solicitor for the Wife.

The amounts paid by or on behalf of the Husband to the solicitor for the Wife are to be applied by the solicitor for the Wife in payment of the costs and disbursements incurred or to be incurred by the Wife in the conduct of these proceedings including but not limited to the reasonable costs and disbursements:

(a) rendered by the solicitor for the Wife; and

(b) rendered by any accountants engaged by the wife or the solicitor for the Wife to report on the valuation of the interests of the Husband in any business, company or entity.

That the question of the categorisation of any payments made pursuant to this order shall be a matter for determination by the trial judge.

The costs of this Application are reserved to the trial Judge.

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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