Barre & Barre and Ors - [2020] FamCA 455

FAMILY COURT OF AUSTRALIA

BARRE & BARRE AND ORS

[2020] FamCA 455

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – where the husband’s previous lawyers applied to be joined to proceedings as judgment creditor of the husband – where the husband’s previous lawyers have obtained default judgment in the Local Court of NSW for unpaid legal fees – where creditor’s petition filed – where application for joinder made after final hearing while judgment is reserved – where at the hearing of their application the husband’s previous lawyers sought merely to be heard as amicus curiae – where the previous lawyers sought to be heard as amicus curiae in support of their own interests – where in the exercise of discretion the Court gave leave to the previous lawyers to make submissions as amicus curiae.

FAMILY LAW – ORDERS – freezing orders – discharge – where the wife seeks enforcement of Binding Financial Agreement pursuant to section 90KA of the Family Law Act 1975 (Cth) – where the husband and a respondent claiming to be de facto of the husband seeks release of funds frozen by court order in a controlled monies account – where there is no dispute the frozen funds are owned by a company controlled by the husband – where there is no dispute the respondent claiming to be a de facto of the husband loaned monies to the husband and husband’s company – where the wife makes no claim on frozen funds to enforce Binding Financial Agreement – freezing order discharged – orders made for release of funds to husband’s company and distribution of funds to respondent claiming to be de facto of the husband.

Bankruptcy Act 1966 (Cth) s 59A
Family Law Act 1975 (Cth) ss 58, 59, 90KA, 92
Family Law Rules (Cth) r 6.02

Barre & Barre; Gilliam & Barre [2019] FamCA 315
Barre & Barre and Ors [2019] FamCA 907
Levy v Victoria (1997) 189 CLR 579

APPLICANT:

Ms Barre

FIRST RESPONDENT:

Mr Barre

SECOND RESPONDENT:

Barre Pty Ltd

THIRD RESPONDENT:

Ms Gilliam

FILE NUMBER:

SYC

6149

2016

DATE DELIVERED:

9 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

4 June 2020

REPRESENTATION

SOLICITOR ADVOCATE FOR

THE APPLICANT:

Mr Parker

THE FIRST RESPONDENT IN PERSON:

Mr Barre

THE SECOND RESPONDENT IN PERSON:	First Respondent as director
THE THIRD RESPONDENT IN PERSON:	Ms Gilliam

Orders

The Application in a Case filed by Q Pty Ltd on 22 May 2020 be dismissed.
All existing orders relating to the funds in the Controlled Monies Account held in the name of Swaab Attorneys at the R Bank, account number …65 be discharged.
Forthwith the balance of the funds held in the Controlled Monies Account in the name of Swaab Attorneys at the R Bank, account number …65 be released to the Second Respondent, Barre Pty Ltd, or be paid at its direction.
That the Second Respondent take all necessary steps to pay forthwith from the funds received pursuant…

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

AGLC: Barre & Barre and Ors [2020] FamCA 455
Case: [2020] FamCA 455
Decision Date: 9 June 2020

CaseChat Overview and Summary

In the matter of *Barre & Barre and Ors*, Harper J of the Family Court of Australia considered applications by the husband's former lawyers, Q Pty Ltd, and a third respondent, Ms Gilliam, concerning funds frozen by court order. The wife sought to enforce a Binding Financial Agreement, but made no claim on the frozen funds, which were acknowledged to be owned by a company controlled by the husband, Barre Pty Ltd. The dispute also involved a respondent claiming to be the de facto partner of the husband, who had loaned money to the husband and his company.

The primary legal issues before the Court were whether to discharge existing freezing orders over funds held in a controlled monies account, and how those funds should be distributed. Additionally, the Court had to consider the application by the husband's former lawyers to be joined to the proceedings as a judgment creditor, having obtained a default judgment for unpaid legal fees. While initially seeking joinder, the lawyers later sought to be heard as *amicus curiae* in support of their own interests.

Harper J determined that the freezing orders should be discharged as the wife had no claim on the frozen funds for the enforcement of the Binding Financial Agreement. The Court exercised its discretion to allow the former lawyers to make submissions as *amicus curiae*, despite their application being made after the final hearing and while judgment was reserved. The Court reasoned that the funds were not subject to the wife's claim and that the company controlled by the husband, Barre Pty Ltd, was entitled to the funds.

Consequently, the Court ordered the discharge of all existing freezing orders relating to the funds in the controlled monies account. The balance of the funds was to be released to Barre Pty Ltd, with directions for Barre Pty Ltd to pay $35,000 to Ms Gilliam from those funds. Applications by Q Pty Ltd and Ms Gilliam were otherwise dismissed.

Orders

Orders of the court

The Application in a Case filed by Q Pty Ltd on 22 May 2020 be dismissed.

All existing orders relating to the funds in the Controlled Monies Account held in the name of Swaab Attorneys at the R Bank, account number …65 be discharged.

Forthwith the balance of the funds held in the Controlled Monies Account in the name of Swaab Attorneys at the R Bank, account number …65 be released to the Second Respondent, Barre Pty Ltd, or be paid at its direction.

That the Second Respondent take all necessary steps to pay forthwith from the funds received pursuant to Order 2 of these orders $35,000 to the Third Respondent, Ms Gilliam.

That the parties give all necessary instructions, execute all necessary documents and take all necessary steps to effect the payments referred to in these orders.

The Application in a Case filed on 19 April 2020 by Barre Pty Ltd otherwise be dismissed.

The Application in a Case filed on 6 April 2020 by the Third Respondent, Ms Gilliam otherwise be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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