Daily & Daily (No 2)

Case [2023] FedCFamC1F 858

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Daily & Daily (No 2) [2023] FedCFamC1F 858

File number(s): ADC 4606 of 2018
Judgment of: BERMAN J
Date of judgment: 13 October 2023
Catchwords:

 FAMILY LAW – PRACTICE AND PROCEDURE – Leave to reopen – Where judgment was delivered in March – Where s 75(2) factors were considered in the judgment – Where the quantum of damages remains outstanding – Where the applicant seeks leave to adduce further evidence in relation to his current circumstances – Where the application was not brought in a timely fashion – Where the Court’s discretion is to be guided and tempered by the interest of justice – Where the Court exercises its discretion to allow the applicant to adduce further evidence as to his legal fees which relate to the quantum of damages – Where the Court declines to exercise its discretion to allow the applicant to adduce further evidence as to his current s 75(2) factors – Orders.

FAMILY LAW – PROPERTY – Litigation funding – Where the applicant seeks litigation funding in the sum of $150,000 – Where the applicant proposes the money comes from net-proceeds of sale – Where the respondent opposes the order – Where the respondent may have a successful application for costs – Where the only source of funds for a cost order would be from the net-proceeds – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Order for litigation funding in the sum of $50,000.

Legislation: Family Law Act 1975 (Cth) s 72, 74, 79, 80(1)(h), 117, 117(2A)
Cases cited:

Aheb & Aheb (No. 3) [2009] FamCA 524

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Breen v Breen (1990) 65 ALJR 195

Chester v Chester (1995) FLC 92-612

Daily & Daily [2023] FedCFamC1F 222

Daily & Daily (2020) 61 Fam LR 75

Gelly and Gelly (no 1) (1992) FLC 92-290

Murray v Figge (1974) 4 ALR 612

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578

Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256

Stephens & Stephens & Anor (Enforcement) (2009) FLC 93-425

Strahan & Strahan(Interim property orders) (2011) FLC 93-466

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Zschokke & Zschokke (1996) FLC 92-693
Division: Division 1 First Instance
Number of paragraphs: 96
Date of hearing: 29 September 2023
Place: Adelaide
Counsel for the Applicant: Ms Miller
Solicitor for the Applicant: Jordan & Fowler Family Lawyers
Counsel for the First Respondent: Mr Anderson
Solicitor for the First Respondent: Norman Waterhouse Lawyers
Counsel for the Second Respondent: Mr Doyle KC and Ms Barnett
Solicitor for the Second Respondent: Barry Nilsson

ORDERS

ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DAILY

Applicant

AND:

MS DAILY

First Respondent

R LAWYERS

Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

1.The applicant be granted…

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Daily & Daily (No 2) [2023] FedCFamC1F 858
Case
[2023] FedCFamC1F 858
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Daily & Daily (No 2) involved Mr Daily as the applicant and Ms Daily as the first respondent. The dispute centred on Mr Daily's application for leave to adduce further evidence regarding his current financial circumstances and legal fees, which were pertinent to the outstanding quantum of damages in the property settlement. Additionally, Mr Daily sought litigation funding in the sum of $150,000 for his legal costs. The case required the court to decide on the appropriateness of granting leave to adduce further evidence and on the allocation of litigation funding.

The primary legal issues before the court were whether Mr Daily should be granted leave to present additional evidence concerning his current circumstances, including care arrangements for the children, updated financial documents, and updated reports from his psychiatrist and updated particulars of his legal fees. The court also had to determine if it was in the interest of justice to allow Mr Daily to adduce further evidence on his current s 75(2) factors, and whether he was entitled to the proposed litigation funding. The court needed to balance these considerations against the principle that the application was not brought in a timely fashion, and the interest of justice.

The court exercised its discretion to allow Mr Daily to adduce further evidence as to his legal fees, which were directly related to the quantum of damages. However, the court declined to exercise its discretion to allow Mr Daily to adduce further evidence regarding his current s 75(2) factors. The court granted litigation funding in the sum of $50,000, taking into account that the respondent may have a successful application for costs, and that the only source of funds for a cost order would be from the net-proceeds of the sale of the property. The court's decision was guided by the interest of justice and the need to ensure fair and equitable outcomes for both parties.

The court made several orders, including granting Mr Daily leave to adduce further evidence regarding his legal fees, costs, and disbursements. It also ordered that $50,000 be paid to Mr Daily from the joint Westpac account for litigation funding. Finally, the court listed all outstanding applications for further directions to be heard on 8 November 2023. The form of the order was subject to entry in the court's records, and the reasons for judgment could be reviewed to correct minor errors or to record variations to the order.

Orders

Orders of the court

ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DAILY

Applicant

AND:

MS DAILY

First Respondent

R LAWYERS

Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

13 OCTOBER 2023

THE COURT ORDERS THAT:

1. The applicant be granted leave to adduce further evidence as to his legal fees, costs and disbursements.

2. By way of litigation funding, the sum of FIFTY THOUSAND DOLLARS ($50,000) be paid to the applicant by his solicitor’s trust account from the Joint Westpac Account of the applicant and the first respondent in Westpac account number …59.

3. All outstanding applications be listed before the Honourable Justice Berman for further directions on 8 November 2023 at 9.00 am.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The first respondent is opposed to the orders sought by the applicant and by Response to Application in a Proceeding filed 31 August 2023, orders are sought that the Application in a Proceeding be dismissed.LEAVE TO ADDUCE FURTHER EVIDENCE The orders sought by the applicant are supported by the matters raised in the affidavit of Andrew Ley Jordan (“the applicant’s solicitor”) filed 1 September 2023 and the affidavit of the applicant sworn 17 September 2023. For reasons best known to the applicant and his solicitor, a decision was made that the applicant’s solicitor would depose an affidavit in support of the application. Paragraph 4 of the affidavit of the applicant’s solicitor is in the following terms:-It has always been the expectation of the Applicant that he would be able to adduce further evidence in relation to his damages, for consideration by the Court following the finding of the validity or otherwise of the Binding Financial Agreement. It is unlikely that the expectation of either the applicant or his solicitor is of relevance to whether leave should be given for evidence to be adduced however, there is now some tension as to whether the applicant seeks to adduce further evidence in relation to damages (paragraph 4) or whether in part, the application seeks to adduce evidence in respect of the determination of property settlement. The applicant asserts that there is no judgment in relation to financial matters. Whilst that submission is correct and accords with the determination of the Full Court that subject to an assessment of damages I am yet to make orders that determine the financial issues between the parties, it should not be overlooked that each of the parties presented evidence that enabled the Court to consider indicative orders for property settlement which might inform the question of hardship and provide a reference point for the determination of damages. The applicant considered he should be compensated for loss should the first respondent obtain a better outcome than would have been the case if the financial agreement was binding on the parties and not set aside. Whilst the proposition appears to be straight forward, it ignores the complexity of a financial agreement that was set aside for uncertainty. Paragraphs [112] to [286] of Daily & Daily [2023] FedCFamC1F 222 provides the basis upon which I considered that subject to further consideration of whether the outcome may change in the event of a successful damages claim by the applicant, the indicative settlement sum to be paid by the applicant to the first respondent is $741,634. The affidavit of the applicant’s solicitor summarises the extent of the further evidence sought to be adduced as follows:-10. The Applicant seeks to adduce further evidence as to the following matters:(a)his current circumstances including care arrangements for the children;(b) an updated balance sheet;(c) an updated report from his psychiatrist, Dr E;(d) his further borrowings;(e) his further drawings upon superannuation; and(f)updated particulars of his legal fees paid (including a breakdown of the separate matters for which fees were incurred).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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