C Lawyers & Boulos - [2021] FamCAFC 39

FAMILY COURT OF AUSTRALIA
C Lawyers & Boulos [2021] FamCAFC 39

Appeal number(s):

EAA 25 of 2021

File number(s):

PAC 772 of 2017

Judgment of:

ALDRIDGE J

Date of judgment:

26 March 2021

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the primary judge summarily dismissed the applicant’s interim application for injunctions – Where the first respondent was paid funds out of consent property settlement orders – Applicants assert they hold a lien over funds received by the first respondent for legal fees owed – Real risk that the funds would not be available should the appeal succeed – Injunction granted against both respondents in order to preserve funds pending hearing of the appeal – Application granted.

Cases cited:

Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202

Division:

Appeal Division

Number of paragraphs:

15

Date of hearing:

23 March 2021

Place:

Sydney

Counsel for the Applicant:

Mr Othen

Solicitor for the Applicant:

C Lawyers

The First Respondent:

Self-represented litigant

Solicitor for the Second Respondent:

Zahr Partners

ORDERS

EAA 25 of 2021
PAC 772 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
C LAWYERS

Applicant

AND:
MS BOULOS

First Respondent

MR ZAMAN

Second Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

23 MARCH 2021

ORDERS MADE ON 23 MARCH 2021:
1.The second respondent husband shall not pay the monies due to the first respondent wife pursuant to Order 4 of the orders made on 3 March 2021 (“the Consent Orders”) in the Federal Circuit Court proceedings ‘PAC 772 of 2017’, except to pay or to cause to be paid the whole of the amount under Orders 4(a) and 4(b) of the Consent Orders to the trust account of C Lawyers, the same to remain invested on behalf of the wife pending further order, and otherwise not to be withdrawn without the written consent of the appellant and respondents.
2.To the extent the first respondent wife has received any payment from the second respondent husband pursuant to Order 4 of the Consent Orders, she shall not deal with those funds in any manner whatsoever other than to pay the funds to the trust account of C Lawyers, the same to remain invested on behalf of the first respondent wife pending further order, or otherwise with the written consent of the appellant and respondents.
3.The first respondent wife is to file and serve an affidavit within seven (7) days hereof, setting out what funds, if any, she has received from the second respondent husband pursuant to the Consent Orders, when the funds were received, what has happened to those funds and the present location of any funds still held by the first respondent wife.
4.The parties are granted liberty to apply on 48 hours’ written notice to the Appeal Registrar and to the other parties.
5.The costs be reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy…

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 C Lawyers & Boulos

Details

AGLC: C Lawyers & Boulos [2021] FamCAFC 39
Case: [2021] FamCAFC 39
Decision Date: 26 March 2021

CaseChat Overview and Summary

The application before the court was brought by C Lawyers against Ms Boulos and Mr Zaman, seeking an injunction to preserve funds pending the outcome of an appeal. The case originated in the Federal Circuit Court where consent property settlement orders were made, including payment of certain monies to Ms Boulos. C Lawyers claimed a lien over these funds, asserting that they were owed legal fees. The primary judge had dismissed the interim application for injunctions, but the appeal division reconsidered the matter. The court was tasked with determining whether there was a real risk that the funds would not be available if the appeal succeeded, and if so, whether an injunction should be granted to preserve those funds.

The court found that there was indeed a real risk that the funds would not be available if the appeal succeeded. C Lawyers had a legitimate claim over the funds, and the risk of dissipation was significant. The court emphasised the importance of preserving assets in family law cases, especially when legal fees are in dispute. The court considered the balance of convenience and the risk of injustice if the funds were to be dissipated before the appeal was heard. The court noted that the primary judge had not considered the risk of dissipation, which was a critical factor in granting the injunction.

In granting the application, the court issued an injunction against both respondents, requiring that certain payments be made to the trust account of C Lawyers and that Ms Boulos refrain from dealing with any funds she had already received. The court ordered Ms Boulos to file an affidavit detailing the funds she had received and their current location. The court also granted liberty to apply for further orders as necessary. The costs of the application were reserved.

The court's decision underscores the importance of protecting assets in family law disputes, particularly when there are claims over funds that could be affected by the outcome of an appeal. The injunction serves to ensure that the funds are preserved and available for resolution of the underlying issues in the appeal.

Orders

Orders of the court

EAA 25 of 2021

PAC 772 of 2017

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

C LAWYERS

Applicant

AND:

MS BOULOS

First Respondent

MR ZAMAN

Second Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

23 MARCH 2021

ORDERS MADE ON 23 MARCH 2021:

1. The second respondent husband shall not pay the monies due to the first respondent wife pursuant to Order 4 of the orders made on 3 March 2021 (“the Consent Orders”) in the Federal Circuit Court proceedings ‘PAC 772 of 2017’, except to pay or to cause to be paid the whole of the amount under Orders 4(a) and 4(b) of the Consent Orders to the trust account of C Lawyers, the same to remain invested on behalf of the wife pending further order, and otherwise not to be withdrawn without the written consent of the appellant and respondents.

2. To the extent the first respondent wife has received any payment from the second respondent husband pursuant to Order 4 of the Consent Orders, she shall not deal with those funds in any manner whatsoever other than to pay the funds to the trust account of C Lawyers, the same to remain invested on behalf of the first respondent wife pending further order, or otherwise with the written consent of the appellant and respondents.

3. The first respondent wife is to file and serve an affidavit within seven (7) days hereof, setting out what funds, if any, she has received from the second respondent husband pursuant to the Consent Orders, when the funds were received, what has happened to those funds and the present location of any funds still held by the first respondent wife.

4. The parties are granted liberty to apply on 48 hours’ written notice to the Appeal Registrar and to the other parties.

5. The 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 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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal number(s):	EAA 25 of 2021
File number(s):	PAC 772 of 2017
Judgment of:	ALDRIDGE J
Date of judgment:	26 March 2021
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the primary judge summarily dismissed the applicant’s interim application for injunctions – Where the first respondent was paid funds out of consent property settlement orders – Applicants assert they hold a lien over funds received by the first respondent for legal fees owed – Real risk that the funds would not be available should the appeal succeed – Injunction granted against both respondents in order to preserve funds pending hearing of the appeal – Application granted.
Cases cited:	Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Division:	Appeal Division
Number of paragraphs:	15
Date of hearing:	23 March 2021
Place:	Sydney
Counsel for the Applicant:	Mr Othen
Solicitor for the Applicant:	C Lawyers
The First Respondent:	Self-represented litigant
Solicitor for the Second Respondent:	Zahr Partners

EAA 25 of 2021 PAC 772 of 2017
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	C LAWYERS Applicant
AND:	MS BOULOS First Respondent MR ZAMAN Second Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	23 MARCH 2021