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required to cause the sum of SEVEN HUNDRED AND FORTY ONE THOUSAND SIX HUNDRED AND THIRTY FOUR DOLLARS ($741,634) to be withdrawn from the parties’ joint Westpac Bank Account ending XXX59 and be paid to the trust account of Norman Waterhouse Lawyers for and on behalf of the wife (“the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

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

REASONS FOR JUDGMENT

Berman J

INTRODUCTION

1. On 17 June 2020 judgment was delivered in respect of bifurcated proceedings as to the status of a financial agreement entered into between Mr Daily (“the husband”) and Ms Daily (“the wife”) dated 21 July 2005.

2. For the reasons set out in Daily & Daily (2020) 61 Fam LR 75 (“the 2020 judgment”), I determined that whilst there had not been compliance with the provisions of s 90G of the Family Law Act 1975 (Cth) (“the Act”), by application of the provisions of s 90G(1A) of the Act, it would be unjust and inequitable if the agreement was not binding.

3. I further found that the financial agreement should be set aside pursuant to s 90K(1)(d) of the Act on the basis that since the making of the agreement, there had been a material change in circumstances concerning matters relating to the children and that as a result, the wife would suffer hardship if the agreement was not set aside.

4. The husband successfully appealed the decision and the proceedings were remitted for hearing before me.

5. On 31 March 2023, for the reasons set out in Daily & Daily [2023] FedCFamC1F 222 (“the 2023 judgment”), I found that the financial agreement entered into between the parties dated 21 July 2005 should be set aside for uncertainty and that the agreement could not have been saved by severance of relevant terms and provisions of the agreement nor was it appropriate to consider the application of s 90G(1A) of the Act.

6. At the conclusion of the evidence, the Court heard detailed submissions from the husband, the wife and the second respondent solicitors as to the question of damages that might flow from the decision of the Court to set the financial agreement aside on the basis of uncertainty.

7. Whilst the husband sought leave to make further submissions as to a more precise calculation of the quantum of damages, the husband’s initial position, if the Court found that the financial agreement was not enforceable for want of certainty of its terms, was as follows:[1]

   [1] Husband’s written submissions filed 1 July 2022 at [173].

   … then the husband submits that he has, or will, suffer loss and damage by reason of the Continuing Retainer because:

   172.1in the event the BFA is not enforceable, he will be liable to pay the wife more by way of property settlement than he would have been required to pay her pursuant to the BFA, namely:  

   172.1.1 pursuant to the BFA, the husband would have satisfied his obligations by paying the wife the sum of $215,291 (BFA settlement) and she would have additionally retained the following assets, only, namely:

   (1)      her furniture and effects;

   (2)      her [Motor Vehicle 2];

   (3) the funds standing to her account with [QQ Bank] and her superannuation;

   172.1.2whereas, if the Court finds that the wife should receive a settlement under s79 of the Act in excess of the BFA settlement, the husband will suffer loss and damage equivalent to the amount of the excess.

8. The husband and wife each made detailed submissions as to the application of s 79 of the Act in order to properly consider the issue of hardship raised by the wife.

9. In the husband’s written submissions, he conceded that if the financial agreement was set aside then the contributions between the parties should be reflected in an adjustment of 60/40 in his favour with a further 10 per cent adjustment to bring to account factors pursuant to s 75(2) of the Act.

10. As calculated by the husband, there should be a further adjustment to the wife (in addition to the sum of $250,000 and $110,000 previously received by her) of an additional sum of $199,044.

11. In the 2023 judgment, as a preliminary consideration to the determination of whether there should be a finding as to hardship, I determined that the adjusted net property of the parties was $2,168,151 and the total of the superannuation entitlements of the parties was $730,524.[2]  I determined that the property of the parties should be divided to equality and on that basis, the wife should receive an indicative settlement sum of $741,634.[3]

    [2] Daily & Daily [2023] FedCFamC1F 222 at 213.

    [3] Daily & Daily [2023] FedCFamC1F 222 at 286.

12. I do not propose to repeat matters raised in the 2023 judgment as to how damages should be treated in terms of property settlement other than to restate that the indicative settlement sum payable to the wife may be subject to further adjustment on the basis of a consideration as to whether the outcome is just and equitable should the husband be successful in a damages claim against the second respondent.

13. At the conclusion of the proceedings, the parties and the second respondent sought that the matter be listed for further submissions as to the question of quantum of damages.

14. Whilst not accepted by the husband, the second respondent conceded that the only area where damages might be awarded is in respect of the husband’s legal fees that have properly arisen from the finding that the conduct of the husband’s solicitor resulted in the setting aside of the financial agreement for uncertainty.  The submissions made on behalf of the husband conceded that the negligence of the solicitor “has made it impossible for the husband to prove the precise terms of a Binding Financial Agreement which would have been acceptable to the wife”.[4]

    [4] Husband’s written submissions filed 24 November 2023 at 72.

15. The husband’s primary position is that he would not have married the wife without a satisfactory financial agreement.

16. On that basis, the husband’s contention is that he paid to the wife the sum of $250,000 in 2018 (as part of the 2005 financial agreement) and now apparently conceding the Court’s findings as to an indicative settlement to the wife of $741,634, he is worse off to an amount of $991,634.  In addition, the husband’s legal fees have totalled $820,000 and as such, the husband seeks a total award of damages against the second respondents in the amount of $1,811,634 together with any successful claim for costs brought by the wife.

17. The position of the second respondent is that the husband has not suffered any loss and damage. The finding of hardship by the Court leaves the husband in no different position than he would have been if the financial agreement was not set aside for uncertainty.

18. The second respondent does not accept the husband’s primary position that unless there was a reliable financial agreement in place, he would not have entered into a marriage with the wife.

19. In addition, relying upon the evidence set out in the affidavit of Julietta Kinnear filed 20 November 2023 (“the Kinnear affidavit”), the total damages arising from the husband’s legal fees in relation to the uncertainty claim should be limited to no more than $38,000.

20. Other than to foreshadow that the wife would likely seek costs against the husband, the wife did not seek to engage meaningfully as to the question and quantum of damages as between the husband and the second respondent.

    FURTHER PROCEEDINGS

21. By Application in a Proceeding filed 1 September 2023, the husband sought leave to adduce further evidence of the extent of his legal fees but in particular, the fees that might properly relate to or arise in respect of the uncertainty of the financial agreement.

22. In addition, the husband sought orders for litigation funding in the further sum of $150,000.

23. On 13 October 2023, for reasons set out in Daily & Daily (No 2) [2023] FedCFamC1F 858, leave was given to the husband to adduce further evidence as to his legal fees, costs and disbursements. By way of litigation funding, the husband was able to access the further sum of $50,000 from the parties’ joint bank account.

24. The husband has filed an Application in a Proceeding on 14 December 2023, which supersedes the earlier Application in a Proceeding filed 29 September 2023, seeking the following orders:-

    1.That the first respondent pay to the applicant urgent spousal maintenance for his reasonable living expenses from her indicative property settlement in the joint Westpac Account [xxx59] in the amount of $25,000 lump sum for the next three months or $9,000 per month until interim or final orders are made.

    2.That by way of litigation funding the sum of $50,000 be paid to the applicant from the Joint Westpac Account [xxx59].

    3.That the applicant have leave to file a further updated Financial Statement (draft filed 14/12/2023).

    4.That the applicant have leave to file a Corrigendum to written submissions (draft filed 14/12/2023).

    5.That the applicant have leave to file a Further Amended Initiating Application now that the Binding Financial Agreement has been set aside by the Full Court.

    LEGAL PRINCIPLES

25. As considered, the assessment of damages payable by the second respondent is made more complex by the determination that the financial agreement should be set aside for uncertainty.  The husband considers that he is entitled to damages that are to be assessed by reference to the amount payable under the 2005 financial agreement and the amount now payable to the wife, having regard to the indicative settlement sum.  In addition, the husband seeks that his legal fees in the sum of $821,000 be considered as damages.  The husband’s initial position in terms of the calculation of damages is summarised at paragraph 426 of the 2023 judgment.

26. As highlighted at paragraphs 427 to 429 of the 2023 judgment, the husband’s calculations included superannuation entitlements which had been accessed by the husband.  Moreover, the legal fees of the parties properly expended by each of them were brought back to account as an addback.

27. The husband accepts that he bears the onus of proving on the balance of probabilities loss and damage.  It is acknowledged that arising from the determination of the Court that the financial agreement was void for uncertainty in circumstances and where the severance of uncertain terms would render the agreement of no effect, the husband contends that a satisfactory financial agreement was critical to his preparedness to enter the marriage with the wife.

28. The husband’s position is summarised in his counsel’s written submission document as follows:[5]

    74.It is accepted that the husband must prove on the balance of probabilities that there was available to him an opportunity or opportunities of securing a better financial result than that which was delivered to him under the judgment of the Court. It goes without saying that the husband had the opportunity, with proper advice, to secure a financial agreement, if one was to be entered into, which was not void for uncertainty. That opportunity must be treated as a certainty. [The second respondent] cannot be heard to say otherwise. Then, consistent with the evidence, there are only two realistic possibilities open. Either the husband would not have reached agreement with the wife on a financial agreement and would not have entered the marriage or the husband would have reached agreement with the wife on the terms of a financial agreement consistent with his instructions to [Ms Q] but including a sufficient provision for any child of the marriage, in the event of a breakdown in the marriage, so that the agreement was not vulnerable to being set aside under s 90K(1)(d).

    [5] Husband’s written submissions filed 24 November 2023 at 74.

29. A further contention is that if either of the two opportunities are established on the balance of probabilities, the Court is then obliged to consider the loss sustained by the husband.

30. The husband seeks to counter the argument of the second respondent that a finding of hardship is in and of itself a basis for the financial agreement to be considered as non-binding thereby enabling the wife to bring s 79 proceedings.

31. As such, the husband’s contention is that either the solicitor did not properly advise him as to the potential consequence to the financial agreement should the parties decide to have children and the resultant consideration pursuant to s 90K(1)(d) of the Act or that the solicitor was unable to draft and craft terms of a financial agreement that would be reasonably capable of protecting the husband from a finding of hardship. The husband’s claim is therefore distilled to the husband seeking that his damages be assessed as to the extent to which he would have been better off if he had not entered into a marriage with the wife.

32. The second respondent argues that damages for negligence are to be considered as compensatory and not be too remote.

33. The second respondent submits that the husband is not able to recover his costs of the proceedings as damages but rather if they are awarded, then they must be awarded as to costs. 

34. The second respondent relies upon paragraphs 7 and 8 of the decision of Ross Ambrose Group Pty Ltd v Renkon Pty Ltd & Ors [1999] TASSC 127 and in particular, the reference therein to the principle as set out in Cockburn v Edwards (1881) 18 Ch 449 at 459, where Jessel MR said:

    The most important point is as to the costs as between solicitor and client.  I am of the opinion that it is not according to law to give to a party by way of damages the costs as between solicitor and client of the litigation in which the damages are recovered.

35. The husband and his solicitor had engaged in the consideration of the consequence and effect of a Binding Financial Agreement since 2002.

36. Whilst I did not find that there had been a continuing retainer, I did find that the husband was entitled to expect that the solicitor was definitely skilled in the ability to draft a financial agreement that would not be set aside for uncertainty.

37. It is not controversial that the husband received written advice from his solicitor on 30 September 2002 setting out five possible basis upon which a financial agreement may be set aside.

38. The husband also acknowledged that the financial agreement signed by him in 2005 made reference to s 90K(1)(d) of the Act.

39. I am further satisfied that the evidence of the solicitor, as to her advice to the husband as to what may happen should the parties decide to have children, should be preferred to the evidence of the husband and in particular, that he did not accurately recall the discussion with his solicitor on 21 July 2005.

40. The husband did not establish on the balance of probabilities that a clear instruction was given to his solicitor as to what he wanted as opposed to what he would have liked to happen, namely, that she draft a financial agreement that was effectively bullet proof against the application of s 90K(1)(d) of the Act.

41. I find that the husband understood that absolute certainty of outcome could not be guaranteed nor was there any case prosecuted by the husband which might have demonstrated the type of clauses that could have been considered by Ms Q in 2005 evidencing a reasonable attempt to avoid a potential application of s 90K(1)(d) of the Act.

42. The husband’s evidence did not permit a finding that he required absolute certainty of outcome and in the absence of such advice and assurance from the solicitor, he would not have entered into the marriage.

1. A finding of hardship experienced by the wife and sufficient for the financial agreement to be considered non-binding does not inform or derogate from the determination that the financial agreement should be set aside as being void for uncertainty. It is an important consideration that at the conclusion of evidence, submissions were received on behalf of all parties as to the potential application of s 90K(1)(d) of the Act. The finding of hardship was not informed by the terms and conditions of the financial agreement but rather having regard to the circumstances of the parties 15 years after the financial agreement was executed.

2. In the absence of the husband being able to identify what could or should have been done by the solicitor, there is merit in the argument of the second respondent that given the solicitor’s oral and written advice that the financial agreement could not provide certainty of outcome in respect of a bar to any future challenge by the wife, the husband is not able to establish on the balance of probabilities that his preparedness to enter into the marriage with the wife was conditional on not just entering a financial agreement that would be binding but also that the wife would have no redress to bring an application pursuant to s 90K(1)(d) of the Act.

3. As found, where the evidence of the husband and the solicitor was in conflict, I preferred the evidence of the solicitor. In particular, I reject the husband’s assertion that the solicitor had given unconditional and unqualified advice that the financial agreement provided a certain outcome namely, that firstly it was binding and secondly that there was no possibility of a challenge generally but in particular pursuant to s 90K(1)(d).

4. The unchallenged finding of hardship and the acceptance by the husband that the financial agreement is void for uncertainty, subject to the question of damages if any arising from the husband’s legal fees, permits of a finding that the husband has not suffered any compensatory damages.

   THE HUSBAND’S LEGAL FEES

5. On 4 September 2023 the husband filed an Application in a Proceeding seeking leave to adduce further evidence namely, the extent of the husband’s costs that might be referable as a component of his damages claim against the second respondent.

6. There is considerable complexity in respect of the husband’s presentation of evidence as to costs.  A broad summary appears at paragraph 19 of the husband’s affidavit filed 17 November 2023. 

7. In broad terms, the husband contends that of his total solicitor and counsel costs up to 22 September 2023 are $825,853 of which $35,771 represents the costs of the parenting component of the proceedings and $667,465 relates to “all other costs”.  By necessary implication, the husband considers that “all other costs” were incurred as a direct result of the wife’s application to seek to set aside the financial agreement and the expanded proceedings consequent upon the involvement of the second respondent arising out of the husband’s claim for damages.

8. At a hearing on 18 September 2023, the husband’s counsel summarised what was to occur in respect of the husband’s legal fees as follows:[6]

   [6] Transcript 18 September 2023, p.9 line 44 to p10. line 22.

   [Counsel]:So, your Honour, the other component of the further evidence sought to be adduced is in relation to [the husband]’s claim against the third – second respondent, and that in his most recent affidavit filed over the weekend references the need to undertake a taxation of [the husband’s solicitor]’s file in circumstances that the legal fees incurred in part relate to parenting issues - - - 

   [His Honour]:  Okay.

   [Counsel]:       - - - and that needs to be pulled out - - - 

   [His Honour]:  So, why would – So, is this the position?  The issue of property settlement is not what your client wants to reopen the evidence about, it’s that he wants to place evidence before the court in relation to the damages issue?

   [Counsel]:Your Honour, my instructions are he – his application in a proceeding is to reopen with respect to - - -       

   [His Honour]:  Well, he hasn’t - - - 

   [Counsel]:       - - - both issues. 

   [His Honour]:  Well, he hasn’t brought an application with any focus.  Why – sorry, I just don’t understand what the – I don’t understand what the extra evidence would be, that would impact upon what I’ve already done.  You can’t have a second go at it - - -

9. The husband’s counsel advised the Court that four weeks would be required for the costs component to be done suggesting that what was intended was an itemisation and consideration of the costs of the husband insofar as they, on the husband’s case, may be considered as damages.  Counsel also properly conceded that the exercise as to the proportion of the costs incurred by the husband, which might be referable to his claim for damages, could have been undertaken in preparation for the trial in 2023 and certainly in the months subsequent to the delivery of judgment.  Counsel acknowledged that there was no indication at the conclusion of the evidence in the extensive submissions made both orally and in writing foreshadowed that extra work in respect of the husband’s legal fees would need to be undertaken before a comprehensive final submission could be made on his behalf.

10. It was also an important acknowledgment by counsel that some further evidence proposed to be led by the husband namely, as to matters arising in respect of the sale of a historically owned property at Suburb P was relevant not to property settlement but rather to damages.

11. On the basis that whilst concerned as to the delay in the husband presenting evidence in relation to the components that comprise his total legal costs, upon a further opportunity to be provided to the husband, an order was made that any affidavit or statement of costs was to be filed by 4.00 pm on 25 September 2023.

12. Ultimately, and subject to time being extended to assist the husband and his solicitors prepare and present the further evidence as to costs, the husband filed an affidavit on 3 November 2023 in preparation for argument listed on 8 November 2023.  The position relied upon by the husband is summarised as follows:

    5.Accordingly, my revised total legal fees, costs and disbursements paid to date in these proceedings (excluding costs paid in respect of parenting matters) is E$812,623.

13. The husband provided invoices relating to his legal fees to the second respondents and annexed copies of all invoices relating to solicitor’s costs as from 5 November 2018 and counsel fees as from 28 October 2019.  It is immediately apparent, that the husband and/or his solicitors did not attempt to break down the costs into solicitor/client or party/party costs.

14. The second respondent relies upon an affidavit of Julietta Kinnear filed 20 November 2023 (“the Kinnear affidavit”) in support of a submission that only a minimal amount, if any, and certainly not more than $38,000 may be an appropriate award for damages arising from the negligence of the husband’s solicitor.

15. The second respondent relies upon the earlier discussed submission that it is impermissible for the husband to claim his legal fees as damages other than in the narrow compass of additional costs (over and above costs involving the question of hardship) as to matters relevant to uncertainty.

16. Ms Kinnear qualifies her assessment of relevant costs that may be considered properly as damages on behalf of the husband by her uncontested evidence that she made requests of the husband’s solicitor to produce his file in November 2023 which was subsequently refused on the basis of legal professional privilege.

17. Ms Kinnear sets out the methodology used to assess the husband’s legal fees and to attempt to compartmentalise the components of the husband’s costs ultimately by considering the fees incurred from 5 November 2018 to 23 August 2023 in eleven separate stages.

18. There is significant clarity in the approach adopted by Ms Kinnear and in circumstances where the husband did not seek to challenge Ms Kinnear’s evidence referenced in the spreadsheets comprising annexure “JK-3”, I accept that solicitor and counsel fees incurred in relation to the uncertainty claim are in the sum of about $38,000 on a solicitor/client basis and in respect of the negligence claim, solicitor and client costs total $146,000.

19. The second respondent further qualifies the limited concession as to the sum of $38,000 representing the husband’s legal fees attributed to the issue of certainty of contract by highlighting that the husband’s fees have been assessed on a solicitor/client basis and not a party/party basis.

20. There is merit in the observation by the second respondent that no attempt was made by the husband to justify the expenditure of costs that may have limited the scope and longevity of the proceedings.

21. There was no attempt made by the husband to forensically consider the breakdown of his costs as was sought to be undertaken by Ms Kinnear. 

22. The somewhat surprising result is that in circumstances where the husband has not presented evidence as to the breakdown of his costs referable to the issues in dispute, the second respondent concedes the sum of $38,000 albeit highlighting the difficulty of legal fees and costs being considered as damages.

23. 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

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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”.

31. 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.

32. 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.

33. Counsel for the husband during the hearing conducted on 18 September 2023 conceded the only aspect of uncertainty was not a challenge to the indicative property settlement but rather the consequences arising as a result of the outcome of the husband’s damages claim.

34. The issue was further reinforced by reference to the submissions submitted on behalf of the husband, as prepared by Senior Counsel, that a component of the husband’s damages claim against the second respondent was the indicative settlement sum of $741,000.

35. Given the husband’s significant latitude in terms of the evidence that was before me based upon the various Applications in a Proceeding, his affidavit material and updated Financial Statements, I do not consider that there should be any further adjustment to the determination of the settlement sum in favour of the wife.

36. Given that the settlement sum will inevitably come from the joint account of the parties, there is no reason why the settlement sum cannot be paid to the wife’s solicitors within 7 days of the date of this judgment.

37. Further, I propose to order that the second respondent’s pay to the husband within 30 days of this judgment the sum of $38,000 by way of damages.

38. Counsel for the wife foreshadowed the possibility of an application for costs.  No formal application was made but it is reasonable that the parties are given an opportunity to consider the judgment and the litigation generally.  As such, I propose to put in place an injunction to preserve the balance of money transferred from the joint Westpac account for a limited time.

39. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       9 February 2024