Cameron and Starling (No. 2)

[2008] FamCA 642

FAMILY COURT OF AUSTRALIA

CAMERON & STARLING (NO. 2) [2008] FamCA 642

FAMILY LAW – COSTS – Dispute between solicitor and client

Family Law Act 1975 (Cth)

APPLICANT: KEITH ROSS CAMERON

RESPONDENT: MS STARLING

FILE NUMBER: MLC 201 of 2008

DATE DELIVERED: 2 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B. Kiernan

SOLICITOR FOR THE APPLICANT: Richmond & Bennison

THE RESPONDENT: No appearance

Orders

1. That until further order MS STARLING be restrained from transferring, disposing of or divesting herself of the sum of $25,866.52 being part of a sum of money held by Hocking Stuart (BSM) Pty Ltd.

2. That until further order, MS STARLING be restrained by injunction from directing Hocking Stuart (BSM) Pty Ltd to pay out the sum of $25,866.52 to her or her nominee. 

3. That Hocking Stuart (BSM) Pty Ltd IS REQUESTED TO:

   (a)note the order in paragraphs 1 and 2 hereof; and

   (b)agree to be bound by this order.

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

   (a)MS STARLING;

   (b)Hocking Stuart (BSM) Pty Ltd; and

   (c)Adam Kernahan.

5. That the application of the applicant filed 26 June 2008 be otherwise dismissed and otherwise removed from the list of cases awaiting a hearing.

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. This is an application in the judicial duty list filed by Keith Ross Cameron on 26 June 2008.  Mr Cameron is a legal practitioner who acted for the wife, Ms Starling, in proceedings in this court which ended with on 2 April 2008 when Guest J made final orders between Mr and Mrs Starling. On that occasion I note that both parties were represented by counsel who appear in my court regularly and whom I would describe as very experienced. 

2. Reading the material generally, it seems that a cost dispute has arisen between the wife and Mr Cameron.  The dispute came to Mr Cameron's notice because under the orders to which I have referred by Guest J, a particular course of action was to take place in relation to the conveyancing and it transpires that the wife spun Mr Cameron a yarn about just exactly who was going to be doing the conveyancing.

3. Thereafter the cost dispute arose.  Mr Cameron sets out in very comprehensive detail what he has done in relation to the costs issue including how he set out his memorandum of the various costs that were charged to the wife.  He also as one should in an application seeking the indulgence of a court for an injunction, set out the other issues including the fact that the wife made a complaint to the legal services commissioner but that was outside of her jurisdiction. 

4. What has now transpired is that Mr Cameron has no confidence from what he has seen and read and heard, that he will get his costs.  This is a case in which the costs dispute will be coming on before the registrar on 21 August.  The property which was the subject of the dispute between Mr and Mrs Starling has been sold for $965,000 and I am told that the equity or the balance left over is about $365,000 all of which will go to the wife.

5. In the meantime it is noted that the agents who acted on the sale, Hocking Stuart (BSM) Pty Ltd are holding $96,500 or thereabouts in their trust account by way of a deposit.  One can only guess as to what their commission might be, but it is unlikely to be $96,000.

6. The dispute between Mr Cameron and the wife seems to revolve around the sum of $25,866.52, so it would seem to me that it is unlikely that all of the money in the Hocking Stuart trust account will go in the payment of their commission, and there will be more than enough left over to satisfy a dispute if Mr Cameron is entirely successful to the extent of $25,866.52. 

7. Mr Cameron makes clear in his affidavit that he anticipates as a result of the instructions he received that the wife would be returning to the United Kingdom with her children as she and they are all British citizens.  Mr Cameron says that on 31 March she said she intended to return as soon as the settlement of the former matrimonial home was completed.  Having regard to the dispute between the wife and Mr Cameron and his fear that she may not pay him anything, and the fact that there is a costs dispute before the registrar gives me little comfort.  I think it is appropriate in the circumstances that at least that sum be quarantined until the issue can be disputed.

8. There are authorities long held in this court about the court's inherent power to make these sorts of orders and I see no reason to depart from those authorities or deal with them in great detail in this case.  Mr Cameron's application in a case was filed on 26 June and I have been handed today an affidavit of service which indicates that the document and the affidavit was served on the wife on 26 June at 3.40 pm.  According to the affidavit, Ms C who served the wife asked her whether she was the person named in the documents and she said "yes."

9. It is to be noted that the documents were served on this person at number … A Street in B which is in fact the property that is to be sold.  I have had the wife called outside of the court this morning and there has been no appearance.  There is no correspondence on the file to indicate that she desires to participate in the proceedings.  She has not filed any documents in the proceedings.

10. It seems to me in the circumstances I can draw the conclusion that having regard to the simplicity with which the application was set out, she knows full well what the case is about, and does not oppose the orders being made.  I proceed on that basis to hear the matter in her absence.

11. The other part of the application sought orders that as alternatives, Hocking Stuart (BSM) Pty Ltd be restrained from giving the money to the wife.  There was a further possibility sought that the conveyancing solicitor Mr Adam Kernahan also be restrained from paying the money to the wife.

12. I have declined in discussion to agree that that this an appropriate course of action having regard to the fact that neither of those entities or individuals have been served. This is not a matter that I could use section 90AF of the Family Law Act 1975 (Cth) (“the Act”) having regard to the fact that the s 79 power in the proceedings has been exhausted by the orders of 2 April 2008.

13. That gives rise to the complex problem of whether or not persons such as Mr Kernahan and or Hocking Stuart (BSM) Pty Ltd would comply with an order even if it was made.  It makes it even more complex when one thinks about the fact that they are agents of the wife and she could give them specific directions.  Under those circumstances I propose to have the orders brought to their attention with a request that they agree to comply with the orders.  If they decline to do so, presumably on instructions from the wife, then a further application can be made in the duty list, and the question of jurisdiction to make those orders can be then contemplated.

I certify that the preceding Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 July 2008