D LAWYERS & DOLCETTI AND ORS

[2018] FamCA 1171

FAMILY COURT OF AUSTRALIA

D LAWYERS & DOLCETTI AND ORS [2018] FamCA 1171

FAMILY LAW – PROPERTY – application by the husband for the release of moneys held in trust pending written authorisation of the executors of the estate of the wife and the solicitors for the husband – where the executors of the estate of the wife  have received notice of the application and have indicated they will no longer participate in the proceedings – orders for the release of moneys held in trust to pay solicitor costs and otherwise to give effect to the final orders

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: D Lawyers

FIRST RESPONDENT: Mr A Dolcetti

SECOND RESPONDENT: Mr B Dolcetti &
Mr C Dolcetti as
Executors to the Estate of Ms Dolcetti 

THIRD RESPONDENT: Mr B Dolcetti

FILE NUMBER: MLC 9270 of 2018

DATE DELIVERED: 10 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 10 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: D Lawyers

SOLICITOR FOR THE 1ST RESPONDENT: Randles Cooper Lawyers

SOLICITOR FOR THE 2ND RESPONDENT: No Appearance

SOLICITOR FOR THE 3RD RESPONDENT: No Appearance

Orders

IT IS ORDERED THAT

1. The funds held on trust for the parties in the solicitor’s trust account of D Lawyers Pty Ltd, the applicant in these proceedings, in the sum of $5,237.72, be disbursed as follows:

   (a)firstly to pay the costs of the applicant fixed in the sum of $2,285.23;

   (b)to pay to Randles Cooper Lawyers the sum of $500; and

   (c)the balance to Mr A Dolcetti.

2. The Application in a Case filed 29 June 2018 be otherwise dismissed and removed from the list of cases awaiting hearing.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym D Lawyers & Dolcetti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9270 of 2018

D Lawyers

Applicant

And

Mr A Dolcetti

First Respondent

And

Mr B Dolcetti & Mr C Dolcetti as Executors to the Estate of Ms Dolcetti

Second Respondent

And

Mr B Dolcetti

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List on the application of D Lawyers. The Application in a Case was filed on 29 June 2018. The substantive proceedings were proceedings between the husband and the estate of the wife, the executors of that estate being Mr B Dolcetti and Mr C Dolcetti. Those proceedings were resolved by way of final orders made by consent on 11 June 2003. 

2. Subsequent to the making of those orders, there was agreement between the solicitors acting on behalf of the estate and the solicitors for the husband, that funds would be held in trust and not be distributed to any party until such time as written authorisation was received from both the executors of the estate and the solicitors for the husband. The amount held in trust, being the sum of $5,237.72. There appears to have been some negotiations in relation to the provision of chattels and the money was held on that basis. 

3. Very little appeared to occur for many years until in December 2016 and January 2017, the applicant in this case wrote to the solicitors acting on behalf of the husband enquiring whether they continued to hold instructions, and advising that if they did not receive any direction within 28 days they would consider making arrangements to deposit the funds as unclaimed moneys with the State Revenue Office.  The applicant also wrote to its former clients, being the executors of the estate.  The executors of the estate did not appear and were not represented at the hearing before me.

4. It would appear, however, that attempts were made both by way of correspondence and otherwise to serve this application upon the executors of the estate. One of those executors did respond to earlier correspondence by a handwritten letter to Mr C Dolcetti returning the correspondence.  Written on that correspondence was the following:

   All correspondence to be forwarded to Mr B Dolcetti at [address]. I refuse to deal with this matter any longer and will not be accepting any correspondence from D Lawyers.  As far as I am concerned, all money can be donated to the E Hospital.

5. The final orders provided at paragraph 1(e) that:

   all moneys in any joint accounts of the husband and wife or joint accounts of the husband and the estate, save for that referred to in order 1(b) hereof, including but not limited to the term deposit with the F Bank account number …37, being a sum of approximately $5534, together with interest thereon, being due for renewal in July 2003, be transferred to the husband. 

6. The husband gave brief oral evidence and having heard that evidence and there being no evidence to the contrary, I am satisfied that the moneys held in the F Bank were not paid to him and it is those moneys that that are now held in trust by D Lawyers.  They are not moneys based upon those orders held on trust for the wife, but moneys held pursuant to the orders for the husband subject to the later undertaking as to the release of those moneys.

7. The estate not taking any further part in these proceedings, at least one of the executors indicating that he has no interest in the moneys held in the Bank of Melbourne and it being the husband’s case that the money should have been paid to him pursuant to the final orders. I am satisfied that in order to give effect to those final orders that the money as held in trust by D Lawyers should be distributed as the husband and D Lawyers now agree. That is, firstly, to pay the costs of D Lawyers fixed in the sum of $2285.23; to pay the husband’s solicitors, the sum of $500; and the balance thereafter to be paid to the husband. I am satisfied that the orders that are proposed are machinery orders rather than property orders, giving effect to the final property orders previously made.  

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 October 2018.

Associate: 

Date:  19 February 2020