Cameron and Starling

[2008] FamCA 612

FAMILY COURT OF AUSTRALIA

CAMERON & STARLING [2008] FamCA 612

FAMILY LAW – COSTS – Dispute between solicitor and client

APPLICANT: Keith Ross Cameron

RESPONDENT: Ms Starling

FILE NUMBER: MLC 201 of 2008

DATE DELIVERED: 1 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 1 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B. Kiernan

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the order made by the Honourable Justice Cronin on 2 July 2008 shall be discharged.

2. That MS STARLING shall direct Hocking Stuart (BSM) to pay the sum of $25,536.52 to KEITH R CAMERON and that Ms Starling shall sign all necessary instruments and do all things necessary to facilitate the said payment by Hocking Stuart (BSM) Pty Ltd to Keith R Cameron.

3. That in the event that Ms Starling fails or refuses to sign all necessary instruments to facilitate the payment of $25,536.52 by Hocking Stuart (BSM) Pty Ltd to Keith R Cameron the court may appoint an officer of the court or other person pursuant to s 106A of the Family Law Act 1975 to execute instruments in the name of Ms Starling necessary to facilitate the said payment.

4. That Ms Starling shall be restrained by injunction from directing Hocking Stuart (BSM) Pty Ltd to pay the sum of $25,536.52 to herself or any other nominee than Keith R Cameron.

5. That Hocking Stuart (BSM) Pty Ltd is requested to:

   (a)Note the order in paragraphs 1, 2, 3 and 4 hereof; and

   (b)Agree to be bound by this order.

6. That service of these orders shall occur as soon as practicable by post and facsimile if it is available to:

   (a)Ms Starling; and

   (b)Hocking Stuart (BSM) Pty Ltd.

7. That in respect of the itemised costs account filed by the applicant Keith R Cameron on 24 June 2008, a costs order shall be made against the respondent, Ms Starling in the sum of $27,803.09, pursuant to Rule 19.37 of the Family Law Rules.

8. That the Application in a Case filed 31 July 2008 shall be and is otherwise dismissed.

IT IS NOTED

1. That once the sum of $25,536.52 is released to Keith R Cameron, Ms Starling has no further monies to pay Mr Cameron to satisfy order 7.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 201 of 2008

KEITH ROSS CAMERON

Applicant

And

MS STARLING

Respondent

REASONS FOR JUDGMENT

1. A solicitor, Keith Cameron, has brought an Application in a Case, today.  Times have been abridged for it to be listed urgently.  It is supported by an affidavit filed yesterday with the Application.  The Application seeks that the order made by Cronin J on 2 July 2008 be discharged and that a sum of $25,866.52, currently held by real estate agent Hocking Stuart, be released to the solicitor, in payment of the solicitor's costs incurred by the wife.

2. There was a costs dispute between the wife and the solicitor.  The wife had filed a Notice of Disputing Itemised Costs on 24 June 2008. 

3. The solicitor had become concerned - for various reasons - that the wife would not eventually pay the costs to him that he was claiming and would, he believed, successfully claim.  He applied to the Court for an order to protect his claim.  His Honour made the orders on 2 July 2008 by which he restrained the wife from transferring, disposing or divesting herself of the sum of $25,866.52.  That order was expressed until further order.

4. On 24 July 2008, the wife filed a Notice of Discontinuance of the costs proceedings.  In it, she referred to the fact that she would be in the United Kingdom until 31 August 2008.  The solicitor again became concerned that the costs that now should clearly be paid to him, given that there was no longer a dispute, would simply be held in trust, and in the wife’s absence, that he would not be able to make arrangements to have them paid to him.

5. On 30 July 2008 the wife signed a letter a copy of which is attached to Mr Cameron's affidavit.  In it she said she agreed to the payment of the solicitor’s outstanding costs from the monies held by Hocking Stuart.  In fact she agreed to the payment of costs in the sum of $25,536.52.

6. I am satisfied that although she was served very late - in fact last night at 7 pm - and according to the process server’s affidavit, she said that she would not appear in court today because of the short notice, and that she has children, but she made it clear that a sum of $330 has in fact been paid.  Given the correspondence between her and the solicitor, the only reasonable inference is that she is quite comfortable not appearing today because the monies held by Hocking Stuart should clearly now be paid over to the solicitor.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  1 August 2008