Bogdanov and Pryor - [2013] FamCA 777

FAMILY COURT OF AUSTRALIA

BOGDANOV & PRYOR

[2013] FamCA 777

FAMILY LAW – Property – interim property division – where all assets retained by wife – where appropriate to ensure level litigious playing field – lump sum order and “dollar-for-dollar” order made.

Osferatu & Osferatu [2012] FamCA 408

Family Law Act 1975 (Cth) s79, 80(1)(h)

APPLICANT:

Ms Bogdanov

RESPONDENT:

Mr Pryor

FILE NUMBER:

BRC

9953

2012

DATE DELIVERED:

11 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

30 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. Page QC

SOLICITORS FOR THE APPLICANT:

Jones Mitchell Lawyers

COUNSEL FOR THE RESPONDENT:

Mr. Kirk QC

SOLICITORS FOR THE RESPONDENT:

Hirst & Co

Orders

That within 14 days of the date of this Order, the Applicant Wife pay to the Respondent Husband the sum of $135.000.00.
That within seven days after payment by or on behalf of the Applicant Wife of any money in payment of accounts:
(a)rendered by the Applicant Wife’s solicitors in respect of these proceedings;
(b)rendered by any accountant, valuer of other expert engaged in respect of these proceedings;
the Applicant Wife pay or cause to be paid the same sum of money to the Respondent Husband’s solicitors.
Any monies paid by or on behalf of the Applicant Wife as referred to in Order 2(a) or (b), are to be held in trust by the Applicant Wife’s solicitors, and within two business days of their receipt of such monies, she cause to be given to the Respondent Husband’s solicitors a memorandum stating the amount of amounts to be paid.
All money paid to the Applicant Wife’s solicitors by or on behalf of the Applicant Wife referred to in Order 2(a) or (b) be held in trust by the Applicant Wife’s solicitors and not be applied in payment of her legal costs and outlays until such time as the same amount has been paid or by or on behalf of the Applicant Wife to the Respondent Husband’s solicitors, and in the event that such payment to the Respondent Husband’s solicitors is not made within seven days after the payment by or on behalf of the Applicant Wife of any money referred to in Order 2(a) or (b), the Applicant Wife direct her solicitors to pay 50 per cent of the amount or amounts held by them in trust to the Respondent Husband’s solicitors.
The amounts paid by or at the direction of the Applicant Wife to the Respondent Husband’s solicitors pursuant to these Orders be applied by them only in the payment of the Respondent Husband’s legal costs and outlays incurred and to be incurred by him in the conduct of these proceedings, including but not limited to the reasonable costs and outlays:
(a)Rendered by the Respondent Husband’s solicitors in respect of these proceedings;
(b)Rendered by any accountant, valuer or other expert engaged in respect of these proceedings.
The payments made pursuant to Orders 1, 2 or 4 hereof are to be treated as…

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 Bogdanov and Pryor

Details

AGLC: Bogdanov and Pryor [2013] FamCA 777
Case: [2013] FamCA 777
Decision Date: 11 October 2013

CaseChat Overview and Summary

In *Bogdanov and Pryor*, heard before Tree J, the dispute concerned the financial orders to be made in family law proceedings. The applicant wife was ordered to make specific payments to the respondent husband, both as a lump sum and in relation to legal and expert costs incurred in the proceedings.

The court was required to determine the terms of the financial orders, including the quantum of a lump sum payment from the wife to the husband, and the mechanism for the wife to contribute to the husband's legal and expert costs. The court also needed to establish how these payments were to be held and applied by the respective solicitors.

Tree J ordered the applicant wife to pay the respondent husband a lump sum of $135,000 within 14 days. Further, the wife was ordered to pay any monies received by her solicitors for accounts rendered by her own legal representatives or any experts engaged in the proceedings to the husband's solicitors within seven days of payment. These monies were to be held in trust by the wife's solicitors, with a memorandum of the amounts to be provided to the husband's solicitors. Crucially, these funds were not to be applied towards the wife's legal costs until an equivalent amount had been paid to the husband's solicitors. If payment to the husband's solicitors was not made within seven days, 50% of the trust funds were to be paid to them. The husband's solicitors were permitted to apply these received funds solely towards the husband's legal costs and outlays. All payments made under these orders were to be considered part of the husband's property settlement entitlement.

Orders

Orders of the court

That within 14 days of the date of this Order, the Applicant Wife pay to the Respondent Husband the sum of $135.000.00.

That within seven days after payment by or on behalf of the Applicant Wife of any money in payment of accounts:

(a) rendered by the Applicant Wife’s solicitors in respect of these proceedings;

(b) rendered by any accountant, valuer of other expert engaged in respect of these proceedings;

the Applicant Wife pay or cause to be paid the same sum of money to the Respondent Husband’s solicitors.

Any monies paid by or on behalf of the Applicant Wife as referred to in Order 2(a) or (b), are to be held in trust by the Applicant Wife’s solicitors, and within two business days of their receipt of such monies, she cause to be given to the Respondent Husband’s solicitors a memorandum stating the amount of amounts to be paid.

All money paid to the Applicant Wife’s solicitors by or on behalf of the Applicant Wife referred to in Order 2(a) or (b) be held in trust by the Applicant Wife’s solicitors and not be applied in payment of her legal costs and outlays until such time as the same amount has been paid or by or on behalf of the Applicant Wife to the Respondent Husband’s solicitors, and in the event that such payment to the Respondent Husband’s solicitors is not made within seven days after the payment by or on behalf of the Applicant Wife of any money referred to in Order 2(a) or (b), the Applicant Wife direct her solicitors to pay 50 per cent of the amount or amounts held by them in trust to the Respondent Husband’s solicitors.

The amounts paid by or at the direction of the Applicant Wife to the Respondent Husband’s solicitors pursuant to these Orders be applied by them only in the payment of the Respondent Husband’s legal costs and outlays incurred and to be incurred by him in the conduct of these proceedings, including but not limited to the reasonable costs and outlays:

(a) Rendered by the Respondent Husband’s solicitors in respect of these proceedings;

(b) Rendered by any accountant, valuer or other expert engaged in respect of these proceedings.

The payments made pursuant to Orders 1, 2 or 4 hereof are to be treated as part of the Respondent Husband’s entitlement to property settlement.

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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