Brydan & Sillars (No 3)
[2023] FedCFamC1F 353
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Brydan & Sillars (No 3) [2023] FedCFamC1F 353
File number(s): BRC 6112 of 2020 Judgment of: BAUMANN J Date of judgment: 10 May 2023 Catchwords: FAMILY LAW – INTERIM – PROPERTY – Major Complex Financial Proceedings List – Application by the wife for litigation funding – Where the husband failed to file a Response as ordered and attend personally before the Court or provide instructions – Where the Court proceeded on an undefended basis – Where the Court is satisfied the husband is in a stronger financial position than the wife – Order made for lump sum payment Legislation: Family Law Act 1975 (Cth) ss 79, 80
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33(2)(c)
Division: Division 1 First Instance Number of paragraphs: 11 Date of last submission/s: 26 April 2023 Date of hearing: 26 April 2023 Place: Brisbane Counsel for the Applicant: Mr D Atkinson OAM KC Solicitor for the Applicant: Hopgood Ganim Lawyers Solicitor for the Respondent: Barry Nilsson Lawyers ORDERS
BRC 6112 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRYDAN
Applicant
AND: MR SILLARS
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
10 MAY 2023
THE COURT ORDERS:
1.That within seven (7) days of the date of these Orders, the Respondent husband pay or cause to be paid the lump sum of $510,000 on account of the Applicant wife’s legal costs, pursuant to ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth), to be paid to the trust account of Hopgood Ganim Lawyers and adjusted against the Applicant’s final property entitlement.
2.That the parties be at liberty to apply to have the matter re-listed upon providing three (3) days’ written notice to the other party, if the payment pursuant to Order 1 is not made.
3.That the parties be granted leave to inspect and photocopy the documents produced under subpoena from AA Group, and identified as subpoena item 31(a) on the file.
4.That the issue of costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brydan & Sillars has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(In respect of Order made 26 April 2023)
BAUMANN J:
Competing property applications between the wife Ms Brydan and the husband Mr Sillars have been ongoing since the wife filed her Application on 25 May 2020.
The proceedings, which are assigned to the Major Complex Financial Proceedings List, is set to commence a five day hearing on 5 June 2023. Parenting proceedings in respect of the parents’ only child have been bifurcated so as to permit the financial dispute to be determined.
Although the Court has determined a number of competing interlocutory applications in this matter, on 28 March 2023 the wife filed an Application in a Proceeding seeking a number of orders, inter alia including, at paragraph 6 that:
6.Within 14 days of the date of these Orders, the respondent is to pay or cause to be paid the lump sum of $510,000 on account of the wife’s legal costs, to be paid to the trust account of Hopgood Ganim Lawyers.
This Application first came before the Court on 5 April 2023 when both the parties were represented by Senior Counsel, Mr Atkinson of King’s Counsel for the wife and Mr Wilson of King’s Counsel for the husband. The husband’s absence in Court was noted, and although through proper negotiations a number of consent orders/directions were reached, the application for further litigation funding was adjourned for hearing to 26 April 2023. At paragraph 8 of the Orders made 5 April 2023, the husband was directed to “file and serve a Response to the Application in a Proceeding and supporting affidavit, by no later than 4.00pm on 19 April 2023”.
When the matter commenced at 11.00am on 26 April 2023, it became apparent that:
(a)the husband again was not present and his solicitor advocate Ms Davies informed the Court that she had no specific instructions at that time; and
(b)the husband has not filed any material as directed in response.
In the circumstances as contended by Mr Atkinson KC for the wife, the Court decided to proceed in the absence of the husband being personally present, and where he had failed to file a Response. In doing so, the Court proceeded as it was entitled to do pursuant to Rule 1.33(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Of course the Court could not make an order as sought by the wife until it was satisfied to do so was just and equitable and otherwise proper. The wife submitted the power enlivened by the Application to make the orders was a combination of Sections 79 and 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”).
The wife relied upon the material identified in the outline of case document filed 24 April 2023 and the written submissions of Counsel attached to that document.
I pronounced the order which appears at the commencement of these short Reasons on 26 April 2023, after giving the husband’s solicitor an opportunity to address the Court. To be fair to Ms Davies for the husband, where her client did not adduce any evidence, she was limited in what she could say.
In short, I am satisfied on the evidence relied upon by the wife that:
(a)the major asset from the marriage is a group of interrelated companies and trusts involved in property development, together with interests in joint ventures with a third party;
(b)forensic accountants have been engaged for some time, and at a considerable cost, to opine as to the value in these entities. The husband has been ordered, at first instance, to meet the costs of the expert but delays in securing a final report have occurred – the wife asserting as a result of various defaults by the husband in providing information or paying the experts fees. On 26 April 2023, a final report was not produced to the Court but is expected to be available for the trial;
(c)the wife has incurred costs in the order of $860,028.97 and her evidence supported by the affidavit of her solicitor Ms U is that the estimated further fees and disbursements at the conclusion of a five day trial dealing only with property, are in the order of $475,545.34 to $559,865.34;
(d)at paragraph 3 of the written submissions, Counsel sets out the principles to be applied which are not seriously in dispute.
(e)although the “principal report” of the single forensic expert Mr DD has not been filed, the parties, I am satisfied, have had access to its preliminary opinions as to the value of interests under the husband’s control – said to be worth “some $32 million”. Furthermore, the wife says that by reference to documents produced under subpoena she is aware that:
(i)in late 2022, the husband’s entities purchased property in City P totalling $12,500,000. The wife claims that she was not informed of these transactions by the husband as he was obliged to do; and
(ii)in a statement of financial position signed by the husband and submitted to EE Finance (I infer in support of some application for finance), the husband “estimated his nett assets as at $44,102,058 including cash at bank ($500,000), a share portfolio of $1,000,000; a number of luxury cars and unencumbered real property.
(f)in the absence of any explanation or evidence from the husband, and doing the best I can on the evidence adduced on behalf of the wife, I am reasonably satisfied that:
(i)the husband is in a stronger financial position than the wife and has the ability to meet his own legal costs, where the wife would have difficulty in doing so. In that regard, the Costs Notice filed by the solicitor for the husband on 24 April 2023 revealed the husband has already paid $960,339.43 in legal costs and disbursements; owes approximately $108,564.61 and the range for future costs and disbursements is between $306,000 and $456,000; and
(ii)the wife has a strongly arguable case for property division. This is not to say the Court, at this stage, agrees that the property pool should be divided equally (as the wife now contends) but her claim is substantial and any order for the husband to pay an additional sum of $510,000 will not prevent the Court from doing justice and equity by way of final orders under s 79 of the Act.
CONCLUSION
For the reasons given, the Order made on 26 April 2023 and set out at the commencement of these Reasons is proper, just and equitable.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 10 May 2023
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