Banner & Cody (No 2)

[2023] FedCFamC1F 345

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Banner & Cody (No 2) [2023] FedCFamC1F 345

File number(s):

PAC 1601 of 2020

Judgment of:

JARRETT J

Date of judgment:

3 May 2023

Catchwords:

FAMILY LAW – PROPERTY  – Property adjustment application as between applicant and first respondent  –  Undefended hearing with submissions – Where the applicant owed a significant debt to the Australian Taxation Office – Orders made for applicant’s share of the property pool

FAMILY LAW – EQUITY – Liens – Where the applicant’s former solicitor applied to join the proceedings – Where an equitable lien was asserted over fruits of the litigation – Where there will be no fund for the lien to attach – Joinder refused

Legislation:

Family Law Act 1975 (Cth) ss 75(2), 75(2)(ha), 79, 79(4)(d), 79(4)(e), 79(4)(f), 79(4)(g) and 80

Cases cited:

Commissioner of Taxation & Worsnop [2009] FamCAFC 4;

Firth v Centrelink & Anor [2002] NSWSC 564

Division:

Division 1 First Instance

Number of paragraphs:

34

Date of last submission/s:

6 April 2023

Date of hearing:

20 March 2023

Place:

Brisbane

Solicitors for the Applicant:

Litigant in person

Counsel for the Respondent:

Mr Macarounas

Solicitors for the Respondent:

Matthews Folbigg Pty Ltd

Counsel for the Intervener:

Ms Kovacs

Solicitor for the Intervener:

HWL Ebsworth Solicitors

ORDERS

PAC 1601 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BANNER

Applicant

AND:

MS CODY

First Respondent

COMMISSIONER OF TAXATION

Intervener

order made by:	JARRETT J
DATE OF ORDER:	3 May 2023

BY CONSENT AS BETWEEN THE FIRST RESPONDENT AND THE INTERVENER

THE COURT ORDERS THAT:

1.The applicant and the respondent shall forthwith, and no later than seventy-two (72) hours from the date of these orders, do all acts and things and sign all documents and authorities to cause the amount of $140,039.85 to be transferred from the trust account of K Solicitors to the trust account of the solicitor for the respondent (Matthews Folbigg Pty Ltd).

2.The respondent shall, forthwith upon receipt of the $140,039.85 into her solicitor’s trust pursuant to Order 1, and no later than seventy-two (72) hours from the time of such receipt, do all acts and things to pay land tax in the amount of $140,039.85, as referred to in the Land Tax Assessment Notice in her name (correspondence ID …), to NSW Government (Revenue), Biller code: … Ref: …31.

3.The applicant is restrained from dealing with funds in his former solicitor’s trust account (K Solicitors) except as otherwise provided herein.

4.The respondent is restrained from dealing with funds in her solicitor’s trust account received from the proceeds of sale of the property known as J Street, Suburb C in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier … (Suburb C property), or pursuant to Order 1, except as otherwise provided for herein.

5.On the later date of fourteen (14) days from the date of these orders and the date of the wife’s compliance with…