Daily & Daily (No 5) - [2024] FedCFamC1F 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daily & Daily (No 5) [2024] FedCFamC1F 392

File number(s): ADC 4606 of 2018

Judgment of: BERMAN J

Date of judgment: 7 June 2024

Catchwords:
FAMILY LAW – LITIGATION FUNDING – Orders made in March 2024 providing the applicant with $142,000 – Where the applicant transferred the funds to a trust – Concession that he can access the funds – Where the applicant now seeks a further $145,000 – where the application has no reasonable prospect of success – application dismissed.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim and lump sum – Where the applicant seeks orders for urgent and/or interim spousal maintenance – Where the applicant concedes the respondent is only able to pay from her property settlement – Application has no utility – Application dismissed.

Legislation: Family Law Act 1975 (Cth) s 45A.

Cases cited:
Daily & Daily (No 3) [2024] FedCFamC1A 77

Daily & Daily (No 4) [2024] FedCFamC1F 149

Division: Division 1 First Instance

Number of paragraphs: 40

Date of hearing: 3 June 2024

Place: Adelaide

Counsel for the Applicant: Litigant in person

Counsel for the First Respondent: Ms Pyke KC

Solicitor for the First Respondent: Norman Waterhouse Lawyers

Counsel for the Second Respondent: Ms Barnett (did not participate)

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
Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

7 JUNE 2024

THE COURT ORDERS THAT:
1.The interlocutory orders sought in the Initiating Application filed 28 March 2024 are dismissed.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION

Mr Daily (“the applicant”) and Ms Daily (“the first respondent”) continue to remain engaged in contested litigation which commenced in 2018 in respect of the first respondent’s application to set aside a financial agreement dated 21 July 2005 (“the financial agreement”).
R Lawyers (“the second respondent”) provided legal services to the applicant in relation to the financial agreement. The applicant joined the second respondent to the proceedings in circumstances where he sought common law damages against them for contractual uncertainty…

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 5)

Details

AGLC: Daily & Daily (No 5) [2024] FedCFamC1F 392
Case: [2024] FedCFamC1F 392
Decision Date: 7 June 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) heard an application from Mr Daily seeking further financial orders from his ex-wife, Ms Daily, in relation to spousal maintenance and litigation funding. Mr Daily had already transferred $142,000 to a trust, but now sought an additional $145,000. Additionally, he sought urgent and interim spousal maintenance payments. Ms Daily contested the application, arguing it had no reasonable prospect of success and had no utility. The court was required to determine whether the application for further litigation funding and spousal maintenance had any merit or utility.

The court found that Mr Daily's application for additional litigation funding had no reasonable prospect of success, given the circumstances and the fact that he already had access to $142,000. The court noted that the application lacked merit as there were no new facts or evidence presented that would warrant further funding. Regarding the spousal maintenance application, the court held that it had no utility because Mr Daily conceded that any payments could only come from Ms Daily's property settlement, which was already being addressed. The court dismissed both applications as they lacked reasonable prospects of success and utility.

The court ordered that the interlocutory orders sought in the initiating application filed on 28 March 2024 were dismissed. The dismissal was made in the context of ADC 4606 of 2018, involving Mr Daily as the applicant and Ms Daily as the first respondent, with R Lawyers as the second respondent. Berman J made the order on 7 June 2024, and the form of the order is subject to entry in the Court’s records. The reasons for judgment may be subject to review to correct minor typographical or grammatical 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:

7 JUNE 2024

THE COURT ORDERS THAT:

1. The interlocutory orders sought in the Initiating Application filed 28 March 2024 are dismissed.

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).

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ADC 4606 of 2018
Judgment of:	BERMAN J
Date of judgment:	7 June 2024
Catchwords:	FAMILY LAW – LITIGATION FUNDING – Orders made in March 2024 providing the applicant with $142,000 – Where the applicant transferred the funds to a trust – Concession that he can access the funds – Where the applicant now seeks a further $145,000 – where the application has no reasonable prospect of success – application dismissed. FAMILY LAW – SPOUSAL MAINTENANCE – Interim and lump sum – Where the applicant seeks orders for urgent and/or interim spousal maintenance – Where the applicant concedes the respondent is only able to pay from her property settlement – Application has no utility – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) s 45A.
Cases cited:	Daily & Daily (No 3) [2024] FedCFamC1A 77 Daily & Daily (No 4) [2024] FedCFamC1F 149
Division:	Division 1 First Instance
Number of paragraphs:	40
Date of hearing:	3 June 2024
Place:	Adelaide
Counsel for the Applicant:	Litigant in person
Counsel for the First Respondent:	Ms Pyke KC
Solicitor for the First Respondent:	Norman Waterhouse Lawyers
Counsel for the Second Respondent:	Ms Barnett (did not participate)
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 Second Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	7 JUNE 2024