BERRELL & TILY

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.