Daily & Daily (No 3) - [2024] FedCFamC1F 47

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required to cause the sum of SEVEN HUNDRED AND FORTY ONE THOUSAND SIX HUNDRED AND THIRTY FOUR DOLLARS ($741,634) to be withdrawn from the parties’ joint Westpac Bank Account ending XXX59 and be paid to the trust account of Norman Waterhouse Lawyers for and on behalf of the wife (“the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…

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 Daily & Daily (No 3)

Details

AGLC: Daily & Daily (No 3) [2024] FedCFamC1F 47
Case: [2024] FedCFamC1F 47
Decision Date: 9 February 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Daily & Daily (No 3) involved a dispute between Mr. Daily and Ms. Daily concerning property settlement and damages arising from legal advice provided by R Lawyers Pty Ltd. The primary legal issue was the assessment of damages Mr. Daily sought against his former solicitors for alleged negligence, specifically in relation to a financial agreement being set aside due to uncertainty. The court also considered whether the damages claim would affect the indicative property settlement previously determined. The court found that the damages claim would not alter the indicative property settlement, as it was not a section 75(2) factor.

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

Implicit in my determination, I do not consider there is merit in the husband’s argument that his position as to the extent of his damages should be considered on the basis that had he not entered the marriage and executed a financial agreement he would not now be liable to pay the wife a settlement sum pursuant to s 79 of the Act, the further sum of $250,000 paid of the consequence of the original financial agreement and his legal fees of $812,000.CONCLUSION AS TO PROPERTY SETTLEMENT As at 31 March 2023, I considered that the wife should receive an indicative settlement sum of $741,634 subject to further consideration of whether the outcome is just and equitable consequent upon a consideration of any successful damages claim by the husband. As is self-evident, I have rejected the husband’s claim for damages other than as to the limited sum conceded by the second respondent of $38,000. Taking into account that the net pool is $2,168,151, I do not consider that the husband receiving $38,000 from the second respondent of necessity impacts upon the various considerations necessary to determine the indicative settlement sum. There is some further contention as between the parties as to the extent of further evidence that the husband seeks to rely upon. The issues were canvassed in a hearing on 29 September 2023. The husband’s counsel conceded that there was no utility in bringing to account the husband’s current medical circumstances given that in the 2023 judgment I gave that aspect significant weight. Nothing more is needed to understand the husband’s circumstances arising from his medical condition and presentation other than my clear finding that the husband was unable to obtain properly remunerated employment. The only other aspect sought by the husband’s counsel to be considered as relevant to proceedings for property settlement related to the care arrangements for the children and an update to the balance sheet. No substantive evidence was presented as to the current arrangements for the children nor was the opportunity to adduce evidence with any formality taken up by the husband. It was not suggested that issues in respect of the children and the parenting arrangements went beyond the matters raised by me in paragraph 226 of the 2023 judgment, namely that both parties have “used their best endeavours to provide for the family and to promote the care, welfare and development of the children”. There was further evidence that the husband may now be indebted, or further indebted to his parents for the payment of legal fees. The difficulty about that submission is that there was no evidence presented as to the terms and conditions by which money may have been provided by the husband’s parents nor is it likely to be a relevant consideration in any event. The parties presented as high functioning individuals and it is a reasonable finding that each of them but in particular the husband, conducted the litigation with eyes wide open.

Ratio Decidendi

Legal Principle Established

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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

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