FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daily & Daily (No 3) [2024] FedCFamC1F 47
File number(s): ADC 4606 of 2018 Judgment of: BERMAN J Date of judgment: 9 February 2024 Catchwords: FAMILY LAW – DAMAGES – Where the husband seeks damages against his former solicitors for negligence – Consideration of damages arising from a financial agreement being set aside on the basis of uncertainty –Consideration and assessment of the quantum of damages –Where the second respondent breaks down and quantifies costs incurred – Consideration of costs incurred on the question of uncertainty – Orders for damages in relation to the uncertainty claim.
FAMILY LAW – PROPERTY – Consideration of whether the damages claim would alter the indicative property settlement determined in a previous judgment – Where the Court does not consider it a s 75(2) factor – No adjustment.
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 90G, 90G(1A), 90K(1)(d). Cases cited: Cockburn v Edwards (1881) 18 Ch 449 at 459
Daily & Daily (2020) 61 Fam LR 75
Daily & Daily [2023] FedCFamC1F 222
Daily & Daily (No 2) [2023] FedCFamC1F 858
Ross Ambrose Group Pty Ltd v Renkon Pty Ltd & Ors [1999] TASSC 127
Division: Division 1 First Instance Number of paragraphs: 81 Date of hearing: 27 November 2023 Place: Adelaide Counsel for the Applicant: Mr Tredrea 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 Lawyers 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 PTY LTD
Second Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.By way of property settlement and division:
1.1within seven (7) days of the date of this judgment, the parties do all things necessary and sign all documents as may be required to cause the sum of SEVEN HUNDRED AND FORTY ONE THOUSAND SIX HUNDRED AND THIRTY FOUR DOLLARS ($741,634) to be withdrawn from the parties’ joint Westpac Bank Account ending XXX59 and be paid to the trust account of Norman Waterhouse Lawyers for and on behalf of the wife (“the settlement sum”); and
1.2the parties do all things necessary to cause the parties’ joint Westpac Bank Account ending XXX59 to be closed conditional upon the remaining funds being transferred to an account as nominated by the husband.
2.The husband be restrained and an injunction granted restraining him from accessing and/or withdrawing any of the transferred funds from the parties’ joint Westpac Bank Account ending XXX59 for a period of forty two (42) days from the date of this order.
3.As between the husband and the wife, they are each declared to be the sole legal and beneficial owner of all other property currently or beneficially owned by them, in…
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CaseChat Overview and Summary
The court rejected Mr. Daily's broader claim for damages, except for a limited sum conceded by R Lawyers Pty Ltd of $38,000. The court determined that the husband's position regarding the extent of his damages was not valid based on the argument that had he not entered into the marriage and executed the financial agreement, he would not be liable for the settlement sum. The court concluded that the wife should receive an indicative settlement sum of $741,634, subject to further consideration of any successful damages claim by the husband. The court dismissed Mr. Daily's claims for additional damages, considering the net pool of $2,168,151 and the limited concession by the second respondent.
The court made specific orders regarding property settlement and division, including the withdrawal and payment of the settlement sum to the wife, restraining Mr. Daily from accessing certain funds, and declaring the sole legal and beneficial ownership of other properties. The court also ordered R Lawyers Pty Ltd to pay $38,000 to Mr. Daily as damages. The form of the order is subject to review for minor errors or variations.
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 PTY LTD
Second Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1. By way of property settlement and division:
1.1 within seven (7) days of the date of this judgment, the parties do all things necessary and sign all documents as may be required to cause the sum of SEVEN HUNDRED AND FORTY ONE THOUSAND SIX HUNDRED AND THIRTY FOUR DOLLARS ($741,634) to be withdrawn from the parties’ joint Westpac Bank Account ending XXX59 and be paid to the trust account of Norman Waterhouse Lawyers for and on behalf of the wife (“the settlement sum”); and
1.2 the parties do all things necessary to cause the parties’ joint Westpac Bank Account ending XXX59 to be closed conditional upon the remaining funds being transferred to an account as nominated by the husband.
2. The husband be restrained and an injunction granted restraining him from accessing and/or withdrawing any of the transferred funds from the parties’ joint Westpac Bank Account ending XXX59 for a period of forty two (42) days from the date of this order.
3. As between the husband and the wife, they are each declared to be the sole legal and beneficial owner of all other property currently or beneficially owned by them, in their respective possession, within their sole or partial control, including but not limited to real property, superannuation entitlements, cash, funds held in bank accounts, motor vehicles and other items of personalty.
4. The parties each irrevocably indemnify the other against all liabilities held in their name or jointly with a third party including but not limited to mortgages, credit cards, personal loans, overdrafts, tax labilities, unpaid school fees, rates and utilities.
5. In the event that either of the parties refuse or neglect to sign any document required by them to be signed, a Judicial Registrar of this Honourable Court shall and is hereby empowered to sign such documents on behalf of that party pursuant to s 106A of the Family Law Act 1975 (Cth).
6. Within thirty (30) days of the date of this order, the second respondent pay to the husband the sum of THIRTY EIGHT THOUSAND DOLLARS ($38,000) by way of damages in full and final settlement of the husband’s claim.
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
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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