BERRELL & TILY - [2020] FamCA 1050

FAMILY COURT OF AUSTRALIA

BERRELL & TILY

[2020] FamCA 1050

FAMILY LAW – LITIGATION FUNDING – Where the matter must proceed to a threshold hearing to determine the existence of a de facto relationship – Where the Applicant has already received $50,000 in litigation funding – Whether the Applicant is entitled to further litigation funding – Orders made for further litigation funding – Where the Respondent seeks an order restraining the Applicant from dealing with any asset – Application for injunctions dismissed.

Family Law Act 1975 (Cth) ss 79, 90SM, 117(2)

Norton & Locke (2013) FLC 93-567
Salvage and Fosse (2020) FLC 93-966

APPLICANT:

Mr Berrell

RESPONDENT:

Mr Tily

FILE NUMBER:

SYC

3428

2018

DATE DELIVERED:

9 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

14 October 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hall

SOLICITORS FOR THE APPLICANT:

Hall Partners

COUNSEL FOR THE RESPONDENT:

Dr Barnett

SOLICITORS FOR THE RESPONDENT:

Pearson Emerson Family Lawyers

Orders

Each of the parties forthwith do all things and execute all documents necessary to cause payment for the benefit of the Applicant Mr Berrell of a sum of $25,000 from the controlled monies account presently maintained by D Solicitors to the trust account of Hall Partners Solicitors.
The solicitors for the Applicant, Messrs Hall Partners, are at liberty to draw upon such funds only for the purpose of payment of legal costs, expenses and disbursements incurred by the Applicant in these proceedings.
Otherwise, the Response to an Application in a Case filed by Mr Berrell of 16 July 2020 is dismissed.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3428 of 2018

Mr Berrell

Applicant

And

Mr Tily

Respondent

REASONS FOR JUDGMENT

The proceedings

Mr Berrell and Mr Tily are parties to proceedings pursuant to section 90SM of the Family Law Act (Cth) (“the Act”). A threshold issue is the existence or otherwise of a de facto relationship between the parties, which is listed for trial for three days commencing on 25 January 2021. The applicant, Mr Berrell, alleges that a de facto relationship existed between the parties during the period 2007 to 2014. The first respondent, Mr Tily, alleges that the parties' relationship was one of friendship and a joint commercial enterprise or partnership. Mr Tily denies completely that the parties engaged in a sexual relationship. Mr Tily denies that the parties ever lived 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.

Continue reading BERRELL & TILY

Details

AGLC: BERRELL & TILY [2020] FamCA 1050
Case: [2020] FamCA 1050
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Berrell (the applicant) and Mr Tily (the respondent) were involved in proceedings concerning the existence of a de facto relationship under section 90SM of the *Family Law Act 1975* (Cth). A threshold hearing was scheduled to determine this issue, with the applicant alleging a de facto relationship existed between 2007 and 2014, while the respondent denied this, asserting their relationship was one of friendship and a commercial enterprise. The applicant sought further litigation funding, having previously received $50,000, and also sought an order restraining the respondent from dealing with his assets.

The court was required to determine whether the applicant was entitled to further litigation funding and whether to grant an injunction restraining the respondent from dealing with his assets. The applicant's entitlement to further funding was to be assessed in light of the strength of his case, the financial disparity between the parties, and the need for a level playing field in the litigation. The application for an injunction involved considering the court's power to grant such orders to protect its function, particularly pending the determination of jurisdictional facts, and the necessity of such an order in the specific circumstances.

Justice Stevenson found that the applicant had an arguable case regarding the existence of a de facto relationship, which could not be characterised as weak, fanciful, or misguided. Considering the significant financial imbalance, with the respondent having expended over $700,000 on legal costs and the applicant being impecunious, the court determined that further litigation funding was necessary to ensure a level playing field. However, as the applicant had not provided evidence of his anticipated legal costs or accounted for the previous $50,000 received, the court ordered a further $25,000 in litigation funding, deeming it sufficient for the applicant to participate adequately in the threshold hearing. Regarding the application for an injunction, the court declined to grant it, finding that the applicant had failed to adduce evidence of any intention or threat by the respondent to dispose of assets, and noting the applicant's impecuniosity and lack of an undertaking as to damages.

The court ordered that $25,000 be paid from the controlled monies account to the applicant's solicitors for legal costs, expenses, and disbursements. The respondent's application to dismiss the applicant's response was dismissed.

Orders