FAMILY COURT OF AUSTRALIA
| D ATTORNEYS & SRESBODAN AND ORS | [2017] FamCA 266 |
| FAMILY LAW – APPLICATION IN A CASE – ENFORCEMENT – Where the husband’s former lawyers seek the enforcement of orders to obtain payment in satisfaction of a Costs Assessment Order made in their favour – Where the lawyers contend that r 20.07(d) of the Family Law Rules 2004 (Cth) gives the court the power to directly order a payment to them from a controlled monies account – Where there is doubt as to whether the court has the jurisdiction to make such an order – Where the order can be enforced by the lawyers asking the court to issue a Third Party Debt Notice – Application for the court to issue a Third Party Debt Notice allowed. FAMILY LAW – APPLICATION IN A CASE – INTERLOCUTORY ORDERS – Where the applicant husband seeks a variety of interlocutory orders – Where the court has no jurisdiction to make the orders sought – Application dismissed. |
| Bankruptcy Act 1966 (Cth) ss 35, 35A Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth) rr 1.12, 19.37, 19.38, 20.01, 20.05, 20.07, 20.30, 20.31, 20.32
Sresbodan & Sresbodan and Ors [2015] FamCA 515
Sresbodan & Sresbodan and Ors [2016] FamCA 954
Sresbodan & Sresbodan and Ors [2016] FamCAFC 88
| APPLICANTS: | Mr D and Mr E trading as D Attorneys |
| FIRST RESPONDENT: | Mr Sresbodan |
SECOND RESPONDENT: | Ms Sresbodan | ||||
THIRD RESPONDENTS: | Trustees of the Bankrupt Estate of Mr Sresbodan | ||||
| FILE NUMBER: | SYF | 4345 | of | 2006 | |
| DATE DELIVERED: | 27 April 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 13 March 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANTS: | D Attorneys |
| THE FIRST RESPONDENT: | In person | |
| SOLICITOR FOR THE SECOND RESPONDENT: | No appearance | |
| SOLICITOR FOR THE THIRD RESPONDENTS: | Goldrick Farrell & Mullan |
Orders
Application in a Case filed by D Attorneys on 8 March 2017
The orders made on 20 September 2016 freezing funds of Mr Sresbodan are varied to the extent necessary to permit D Attorneys to apply for a Third Party Debt Notice seeking the payment of $14 700 pursuant to a Costs Assessment Order made on 14 December 2016, to serve that notice upon the holder of the Controlled Monies Account (“CMA”) referred to in that order and to permit the holder of the CMA referred to in those orders to comply with the Third Party Debt Notice.
Pursuant to r 20.32 of the Family Law Rules 2004 (Cth), upon D Attorneys filing three copies of the Third Party Debt Notice in the form annexed to the Affidavit of Mr E sworn 8 March 2017, the court issue the Third Party Debt Notice in that form.
Pursuant to r 1.12 of the Family Law Rules 2004 (Cth), the requirement to file an Affidavit pursuant to r 20.32 of the Family Law Rules 2004 (Cth) be dispensed with.
Application in a Case filed by Mr Sresbodan on 15 December 2016
The application is dismissed.
Note: The form of the order is…
Continue reading D Attorneys & Sresbodan & Ors
Sign in free to access the full text
- AGLC
- D Attorneys & Sresbodan [2017] FamCA 266
- Case
- [2017] FamCA 266
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it possessed the jurisdiction to make a direct order for payment from the controlled monies account to D Attorneys, or alternatively, whether the appropriate mechanism for enforcement was the issuance of a Third Party Debt Notice. A further issue was whether the court had jurisdiction to grant the interlocutory orders sought by Mr Sresbodan.
Aldridge J reasoned that while there was doubt as to the court's jurisdiction to make a direct order for payment to D Attorneys from the controlled monies account, the court did have the power to issue a Third Party Debt Notice to enforce the Costs Assessment Order. The court found it had no jurisdiction to make the interlocutory orders sought by Mr Sresbodan.
Consequently, the court ordered that the existing freezing orders be varied to permit D Attorneys to apply for and serve a Third Party Debt Notice on the holder of the Controlled Monies Account, and that the holder be permitted to comply with such a notice. The court also ordered the issuance of the Third Party Debt Notice and dispensed with the requirement to file an affidavit under rule 20.32 of the *Family Law Rules 2004* (Cth). Mr Sresbodan's application was dismissed.
Orders
Orders of the court
Application in a Case filed by D Attorneys on 8 March 2017
1.
The orders made on 20 September 2016 freezing funds of Mr Sresbodan are varied to the extent necessary to permit D Attorneys to apply for a Third Party Debt Notice seeking the payment of $14 700 pursuant to a Costs Assessment Order made on 14 December 2016, to serve that notice upon the holder of the Controlled Monies Account (“CMA”) referred to in that order and to permit the holder of the CMA referred to in those orders to comply with the Third Party Debt Notice.
2.
Pursuant to r 20.32 of the Family Law Rules 2004 (Cth), upon D Attorneys filing three copies of the Third Party Debt Notice in the form annexed to the Affidavit of Mr E sworn 8 March 2017, the court issue the Third Party Debt Notice in that form.
3.
Pursuant to r 1.12 of the Family Law Rules 2004 (Cth), the requirement to file an Affidavit pursuant to r 20.32 of the Family Law Rules 2004 (Cth) be dispensed with.
Application in a Case filed by Mr Sresbodan on 15 December 2016
4.
The application is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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.