Bing and Bing and Anor - [2009] FamCA 111

FAMILY COURT OF AUSTRALIA

BING & BING AND ANOR

[2009] FamCA 111

FAMILY LAW – COSTS – Security for costs – Solicitor’s lien over file – Pursuit by former solicitor of unpaid costs where court has ordered litigation funding order which remains unpaid

Family Law Act 1975 (Cth)

Gamlen Chemical Co (UK) Ltd v Rochem Ltd & Ors (1980) 1 All E R 1049

Bergman & Bergman [2008] FamCAFC 207

Ex parte Patience; Makinson v The Minister (1940) 40 SR(NSW) 96

Johns v Cassel (1993) FLC 92-364

APPLICANT:

Mr Bing

RESPONDENT:

Ms Bing

INTERVENOR:

Rockman & Rockman
(A Firm)

FILE NUMBER:

MLF

1745

2006

DATE DELIVERED:

24 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

22 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR WALMSLEY SC WITH MR SCRIVA

SOLICITOR FOR THE APPLICANT:

ISSAC BROTT & CO

COUNSEL FOR THE RESPONDENT:

MR STONE

SOLICITOR FOR THE RESPONDENT:

NEVILE & CO

COUNSEL FOR THE INTERVENOR:

MR EIDELSEN

SOLICITOR FOR THE INTERVENOR:

ROCKMAN & ROCKMAN

Orders

That the wife forthwith charge in favour of Rockman & Rockman (“the firm”) to the extent of $200,000, her interest and entitlement in the property proceedings in case number MLF 1745 of 2006 including arising from the money due to the wife pursuant to the orders of Mushin J made on 9 February 2007.
That notwithstanding the quantum of the charge in paragraph 1 of these orders, the sum ultimately due (if any) to the firm for costs and disbursements shall be subject to any determination of this Court or other agreement between the wife and the firm.
Upon the payment to the firm after the determination of any costs dispute as between the firm and the wife, the charge referred to in paragraph 1 shall be deemed satisfied and discharged.
That until further order, the wife shall, upon receiving funds as a result of orders of the Court or as a consequence of any agreement between she and the husband, direct her solicitors to hold upon trust pursuant to the charge, the sum of $200,000 or such other sum as shall satisfy the determination as set out in paragraph 2.
That there be liberty to all parties to apply on short notice.
That the application in a case (as amended) filed by the firm on 15 December 2008 and the response of the wife thereto filed on 16 December 2008 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bing & Bing is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1745 of 2006

MR BING

Applicant

And

MS BING

Respondent

ROCKMAN & ROCKMAN (A FIRM)
Intervener

REASONS FOR JUDGMENT

This is an interim determination in a proceeding that is listed for final hearing before me in early 2009.
The application is brought by the intervener who is a legal firm that acted as the former legal practitioners (“the…

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

Case: [2009] FamCA 111
Decision Date: 24 February 2009

CaseChat Overview and Summary

The Honourable Justice Cronin considered an application by Rockman & Rockman, the wife's solicitors, seeking to secure their costs against the wife's entitlements in ongoing property proceedings. The dispute concerned the firm's entitlement to a charge over the wife's interest in property proceedings, specifically arising from money due to her under orders made by Mushin J on 9 February 2007.

The central legal issue before the Court was whether to grant Rockman & Rockman a charge over the wife's entitlements in the property proceedings to secure their costs, and if so, to what extent and on what terms. The Court was also required to determine the application filed by the firm and the wife's response thereto.

Justice Cronin ordered that the wife forthwith charge in favour of Rockman & Rockman, to the extent of $200,000, her interest and entitlement in the property proceedings. This charge was to be subject to any determination of the Court or agreement between the wife and the firm regarding the ultimate sum due for costs and disbursements. Upon payment of any determined costs, the charge would be discharged. The wife was also ordered to direct her solicitors to hold $200,000, or such other sum as satisfied the costs determination, upon trust pursuant to the charge, upon receiving funds from the property proceedings. The application by the firm and the wife's response were dismissed.

Orders

Orders of the court

That the wife forthwith charge in favour of Rockman & Rockman (“the firm”) to the extent of $200,000, her interest and entitlement in the property proceedings in case number MLF 1745 of 2006 including arising from the money due to the wife pursuant to the orders of Mushin J made on 9 February 2007.

That notwithstanding the quantum of the charge in paragraph 1 of these orders, the sum ultimately due (if any) to the firm for costs and disbursements shall be subject to any determination of this Court or other agreement between the wife and the firm.

Upon the payment to the firm after the determination of any costs dispute as between the firm and the wife, the charge referred to in paragraph 1 shall be deemed satisfied and discharged.

That until further order, the wife shall, upon receiving funds as a result of orders of the Court or as a consequence of any agreement between she and the husband, direct her solicitors to hold upon trust pursuant to the charge, the sum of $200,000 or such other sum as shall satisfy the determination as set out in paragraph 2.

That there be liberty to all parties to apply on short notice.

That the application in a case (as amended) filed by the firm on 15 December 2008 and the response of the wife thereto filed on 16 December 2008 be dismissed.

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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