Beklar and Beklar (No 2)

[2013] FamCA 650

FAMILY COURT OF AUSTRALIA

BEKLAR & BEKLAR (NO 2) [2013] FamCA 650

FAMILY LAW – PROPERTY – where the applicant sought an order, which would preserve the sum of $25 000 pending his claim for enforcement of a lien over the proceeds of the litigation to be received by the wife, the applicant’s former client – where the applicant and the husband agreed on orders, subject to a Stay not being granted in due course, for the husband to pay $25 000 on 10 August 2013 into a controlled monies account, pending determination of the claim of the applicant, that would preserve the applicant’s lien if and to the extent that they have one.

Family Law Act 1975 (Cth)

APPLICANT: Paul & Paul Lawyers

FIRST RESPONDENT: Mr Beklar

SECOND RESPONDENT: Ms Beklar

FILE NUMBER: SYC 3556 of 2008

DATE DELIVERED: 31 July 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 31 July 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Paul & Paul Lawyers

THE FIRST RESPONDENT IN PERSON: Mr Beklar

SOLICITOR FOR THE SECOND RESPONDENT: McLaughlin & Riordan

Orders

1. That conditional upon the Applicant filing with the Registry, within forty-eight (48) hours, the usual undertaking as to damages I make orders in accordance with paragraphs 1, 2 and 3 in a document headed “Minute of Proposed Consent Orders”, initialled by me and dated today, as set out herein:

1.That on or before 10 August 2013 the Husband shall pay $25,000 part of the amount payable by him to the Wife pursuant to Orders of this Honourable Court made on 10 May 2013 (“the Orders”) to a controlled monies account of the Wife’s solicitor to be held by such solicitor pending further order of the Court.

2.That Order No.1 shall be of no effect if on or prior to 10 August 2013 the Husband obtains a Stay of the Orders.

3.That the parties have liberty to apply in relation to these orders on 48 hours notice.

1. That leave is granted for the parties to forward to my Associate consent orders to vary the orders made today and such orders shall be made in Chambers.

1. That this matter is stood over to the Duty List at 9.30 am on 26 August 2013 before a Registrar.

1. That all parties’ costs of today are hereby reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beklar & Beklar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3556 of 2008

Paul & Paul Lawyers

Applicant

And

Mr Beklar

First Respondent

And

Ms Beklar

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. In these proceedings the applicant seeks orders, which would preserve the sum of $25 000 pending his claim for enforcement of a lien over the proceeds of the litigation to be received by the wife, the applicant’s former client.

3. The sum of $25 000 remains outstanding to the applicant.  The wife seeks to have not only the balance of $25 000 assessed but also the entire bill assessed.  It is possible therefore that once the assessment process has been completed there may be no further sum owing to the applicant, never the less, the position is at the moment that the applicant has presented a memorandum for $25 000 that remains unpaid.

4. The sum payable by the husband to the wife in monetary terms is some $44 000. 

5. I am advised by the wife’s solicitor that she has obtained an approval in principle for the refinancing of property which is dependent upon her receiving that $25 000.  I am also informed that the wife has lodged an appeal against the judgment giving rise of the payment to her and I am advised by the husband that he has cross-appealed.  The husband has foreshadowed making an Application for a Stay to the trial Judge. 

6. It is therefore possible that this Application may be overtaken by events in due course if the trial Judge grants a Stay as sought.

7. The solicitor for the wife is newly instructed and quite properly sought an adjournment of today’s proceedings which was not opposed.

8. The applicant and the husband have agreed on orders, subject to a Stay not being granted in due course, for the husband to pay $25,000 on 10 August 2013 into a controlled monies account, pending determination of the claim of the applicant, that would preserve the applicant’s lien if and to the extent that they have one.

9. The matter is being adjourned to 26 August 2013 in the next duty list and as I have said the monies are due to be paid on or before 10 August 2013 so that any Stay Application would need to be determined prior to that date in order to prevent payment taking place.

Conclusion

1. It seems to me it is in the interests of justice, given the relatively short time this matter has been adjourned, for all parties’ position to be preserved as best as is possible and I will make the orders proposed by the applicant and the husband subject, of course, to the Applicant’s giving as they already have done an undertaking as to damages in the usual form.

2. I also indicated to the parties that if an alternative way of preserving the position, pending the hearing of this matter on 26 August 2013, could be arrived at I would be prepared to make consent orders to give effect to an arrangement in Chambers. 

3. I make orders as set out at the commencement of my Reasons for Judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 31 July 2013.

Associate:

Date:  21 August 2013