C Lawyers and Boulos (No. 2)
[2021] FamCAFC 72
•7 MAY 2021
FAMILY COURT OF AUSTRALIA
C Lawyers & Boulos (No. 2) [2021] FamCAFC 72
Appeal number(s): EAA 25 of 2021 File number(s): PAC 772 of 2017 Judgment of: ALDRIDGE J Date of judgment: 7 May 2021 Catchwords: FAMILY LAW – APPEAL – Where the appellant seeks to appeal an order dismissing an application to intervene in property proceedings between the first and second respondents – Where the appellant asserts a charge over funds received by the first respondent – Where the appellant was the first respondent’s lawyer and carried out work in the property settlement proceedings – Where the appeal is arguable – Where no reasons were provided for dismissal – Appellant granted leave to intervene in property proceedings – Appeal allowed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 79(10)
Family Law Rules 2004 (Cth) r 22.45
Federal Circuit Court Rules 2001 (Cth)
Division: Appeal Division Number of paragraphs: 17 Date of hearing: 7 May 2021 Place: Sydney Solicitor for the Appellant: C Lawyers The First Respondent: Litigant in person Solicitor for the Second Respondent: Zahr Partners ORDERS
EAA 25 of 2021
PAC 772 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: C LAWYERS
Appellant
AND: MS BOULOS
First Respondent
MR ZAMAN
Second Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
7 MAY 2021
ORDERS MADE ON 7 MAY 2021:
1.Appeal No. EAA 25 of 2021 be allowed.
2.That pursuant to s 79(10) of the Family Law Act 1975 (Cth), C Lawyers be granted leave to intervene in proceedings PAC 772/2017 in the Federal Circuit Court of Australia.
3.That there be no order as to costs.
Notations
1.That the orders dated 23 March 2021 continue to apply.
2.That the second respondent husband has made the payment in the amount of $65,000 to the trust account of the appellant on 29 April 2021, pursuant to orders dated 23 March 2021.
3.The parties have reached an agreement by deed that the appellant shall receive $75,000 in full and final payment of its fees. The second respondent shall pay $35,000 to the appellant pursuant to the orders dated 23 March 2021, and the appellant shall retain $10,176.69 and transfer $24,823.31 to the first respondent within two business days of receipt of that amount
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym C Lawyers & Boulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
The appellant, a firm of solicitors, appealed against an order made by a judge of the Federal Circuit Court of Australia dismissing its application to intervene in property proceedings between the first and second respondent.
The appellant sought to intervene in those proceedings to assert a charge over the funds that would be received in due course by the first respondent, asserting that it was entitled to do so because it had acted for her in the proceedings. Such a charge is commonly described as a lien over the fruits of the judgment.
The matter came before her Honour on 18 February 2021. Shortly prior to that date, the first respondent had dispensed with the services of the appellant.
A number of applications were before her Honour on that date. It is not necessary to detail any of them other than the application for intervention and to note that the first and second respondent had resolved the proceedings between themselves and invited her Honour to make orders resolving their dispute by consent. In the end, her Honour was not satisfied that it was appropriate to make the orders by consent on that day, although subsequently they were later made.
The application for intervention was beset with a number of difficulties, which included it having been prepared in accordance with the Family Law Rules 2004 and not the Federal Circuit Court Rules 2001. Her Honour was rightly dissatisfied and frustrated by the unhelpful and confusing manner in which the application was sought to be made.
Ultimately, as emerges from the transcript of the proceedings, her Honour decided to summarily dismiss the application on the basis that it did not seek any relief in accordance with the Federal Circuit Court Rules 2001, and because she was satisfied that it had no prospects of success.
Her Honour’s short reasons do not say why the application had no prospects of success.
A perusal of the evidence before her Honour indicates that the appellant lawyers had carried out work in the property settlement proceedings for the first respondent for which they had charged.
Although her Honour was also referred to the exhibits to the affidavit, which included a copy of the fees agreement containing a clause charging any funds to be received by the first respondent as a result of the property proceedings with payment of the fees, it is not clear whether her Honour actually had the opportunity to look at that document as it was not available in hard copy. There was also some dispute as to whether the exhibits to the affidavit, which included that document, had successfully been emailed to the Court.
However, as the material referred to earlier indicated, there was an arguable case for the relief sought, and it was incumbent upon her Honour to say why she was satisfied that the application had no prospects of success.
Accordingly, I am satisfied that Grounds 5 and 6 of the appeal have been made out. The parties have asked me to make orders resolving the appeal by consent, but it is well established by a number of authorities that the Court must nonetheless be satisfied that there is an error that would justify the consent orders allowing the appeal to be made. As I have indicated I am satisfied that this is the case.
In addition to asking the Court to make consent orders in relation to the appeal, the parties have also resolved the underlying dispute between them as to the paying of the appellant’s fees. A deed setting out the agreement has been entered into by them, and the proposed consent orders note a summary of the terms that have been agreed between them.
The first respondent has travelled to Sydney from Brisbane today to attend to this matter. She informs me that she understands the deed and the proposed orders, and is happy for the orders to be made.
Accordingly, on the joint application of the parties, the appeal is allowed and the order dismissing the Application in a Case made on 18 February 2021 is set aside pursuant to s 79(10) of the Family Law Act 1975 (Cth).
C Lawyers are also granted leave to intervene in the proceedings PAC 772 of 2017 in the Federal Circuit Court of Australia.
There be no order as to costs, with the intention that each party pays for their own costs of the appeal.
I also make the notation set out in the document titled “Consent Orders” which has been handed up to me.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge . Associate:
Dated: 7 May 2021
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