D LAWYERS & DOLCETTI AND ORS

The Family Court of Australia heard an application by D Lawyers, the solicitors for the applicant, concerning funds held in trust. The dispute involved the disbursement of $5,237.72 held in D Lawyers' trust account, which was originally intended to be released only upon the joint authorisation of the executors of the estate of Ms Dolcetti and the solicitors for Mr A Dolcetti. The substantive proceedings between Mr A Dolcetti and the estate of Ms Dolcetti had concluded with final consent orders made in 2003. The executors of the estate, Mr B Dolcetti and Mr C Dolcetti, had been notified of the current application but indicated they would no longer participate in the proceedings, with one executor expressing a desire for the funds to be donated to a hospital.

The court was required to determine how the funds held in trust by D Lawyers should be disbursed, given the estate's withdrawal from the proceedings and the husband's assertion that the money should have been paid to him pursuant to the original final property orders. Specifically, the court needed to consider whether the proposed distribution would give effect to the 2003 consent orders, which stipulated that moneys in joint accounts, including a term deposit, were to be transferred to the husband. The court also had to address the applicant's costs and a payment to the husband's solicitors.

Justice Macmillan reasoned that the funds held in trust by D Lawyers represented moneys that should have been paid to the husband under the 2003 final property orders, subject to a subsequent undertaking regarding their release. Given that the estate was no longer participating in the proceedings and one executor had disclaimed any interest in the funds, the court was satisfied that the proposed distribution was necessary to give effect to the original property orders. The court viewed these orders as "machinery orders" designed to implement the prior substantive property settlement.

Consequently, the court ordered that the funds held in trust by D Lawyers be disbursed as follows: firstly, to pay D Lawyers' costs fixed at $2,285.23; secondly, to pay Randles Cooper Lawyers the sum of $500; and finally, the balance to be paid to Mr A Dolcetti. The application filed on 29 June 2018 was otherwise dismissed.