D Attorneys & Sresbodan & Ors - [2017] FamCA 266

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…

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 D Attorneys & Sresbodan & Ors

Details

AGLC: D Attorneys & Sresbodan [2017] FamCA 266
Case: [2017] FamCA 266
Decision Date: 27 April 2017

CaseChat Overview and Summary

In the Family Court of Australia, Aldridge J considered an application by D Attorneys, the former lawyers for Mr Sresbodan, seeking to enforce a Costs Assessment Order made in their favour. The dispute centred on the method of enforcement, with D Attorneys contending that rule 20.07(d) of the *Family Law Rules 2004* (Cth) empowered the court to order payment directly from a controlled monies account. Mr Sresbodan also filed an application seeking various interlocutory orders.

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

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 subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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