Denning and Denning (No 3)

[2010] FamCA 812

FAMILY COURT OF AUSTRALIA

DENNING & DENNING (NO. 3) [2010] FamCA 812

FAMILY LAW – PRACTICE AND PROCEDURE – Intervenor order – Case management

APPLICANT: MR DENNING

RESPONDENT: MS DENNING

INTERVENOR: ASK FUNDING LIMITED (ACN 094 503 385)

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 8 SEPTEMBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR BERKOVICH

SOLICITOR FOR THE RESPONDENT: F BUTERA & CO

COUNSEL FOR THE INTERVENOR MS TREYVAUD

SOLICITOR FOR THE INTERVENOR MASON SIER TURNBULL

Orders

IT IS ORDERED BY CONSENT:

1. THAT ASK Funding Ltd (ACN 094 503 385) be granted leave to intervene in these proceedings.

2. THAT the injunctive orders contained within paragraph 11 of my orders pronounced 5 March 2010 continue in full force and effect.

3. THAT at or near to the conclusion of the s 79 property proceedings the intervenor be invited to provide in writing to the Court an updated statement by affidavit of the total debt owing by the husband.

4. THAT all parties, at the conclusion of such defended hearing will be invited to address the Court or otherwise provide evidence as is relevant upon the payment demanded by the intervenor and as to which of the parties should contributed, and in what proportions, thereto.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

6. THAT the costs of and incidental to the brief hearing this day be reserved and be determined in the defended proceedings.

7. THAT the solicitors for the wife are to be responsible for keeping the solicitors for the intervenor informed of the progress of the matter and when they may be required to file any affidavit or appear at a hearing.

IT IS NOTED

A.THAT counsel for the intervenor advised the Court that there is an error in paragraph 26 of her client’s affidavit in that the correct interest rate is in fact 10% per annum and not per day.

B.THAT the further case management date is listed and will remain fixed for 21 September 2010 at 11.00 a.m. before Young J.

IT IS NOTED that publication of this judgment under the pseudonym Denning & Denning is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

MR DENNING

Applicant

And

MS DENNING

Respondent

And

ASK FUNDING LIMITED (ACN 094 503 385)
Intervenor

REASONS FOR JUDGMENT

1. In the interlocutory proceedings before me this day, I have now filed an application in a case on 25 August 2010.  The applicant in that document seeks to be made an intervenor in the proceedings between husband and wife before the Court.  The applicant is ASK Funding Limited and they are represented by Ms Treyvaud of counsel this day.  Mr Berkovich of counsel again represents the wife and the husband is in person.  In support of the intervention application an affidavit of Mr T, of ASK Funding Limited, has been filed with the Court. I have read and evaluated that document.

2. Mr T deposes to a sum of $106,000 being previously advanced to the husband, through his former solicitors, to fund costs of and associated with these proceedings and earlier court hearings.  The husband discontinued the services of those solicitors for reasons that are not relevant to this present ex tempore judgment.  The husband did not pay his litigation funder and a demand was made and ultimately a judgment was entered against the husband.  Those proceedings were in the District Court of Queensland, that being the state where the provision of monies was formally made and agreed upon. 

3. In paragraph 26 of the affidavit it is said that the current debt is $148,500 (approximately) inclusive of interest which is accruing at 10 per cent per annum.  The husband has paid no monies in reduction of that debt.

4. The property at R has been sold and approximately $233,000 is held in trust, pursuant to paragraph 11 of orders that I made on 5 March 2010.  The other property of the parties was at C.  That property has now sold for $422,000 but settlement has not yet occurred.  The bank, who conducted the sale, are owed approximately $350,000 or thereabouts.  Otherwise, the assets of the husband and wife relate to other moneys in bank accounts and particularly, it is said by the husband, monies that the wife has taken or received from the family assets and which she should repay.  There is some furniture and other modest assets.

5. In the application of the proposed intervenor, there were additional injunctive orders sought, but counsel has now advised the Court that on the basis of the current injunctive order continuing in full force and effect, that order is sufficient to freeze the moneys arising from the sale of the R property pending further order of the Court;  that is an ongoing and continuing order and the interests of the intervenor in part of that sum are appropriately noted by these ex tempore reasons for judgment and that order is, in any event, ongoing. 

6. Counsel had initially proposed that ASK Funding Limited be given leave to intervene and that they thereafter make, file and serve an application for final orders and be involved in the defended proceedings.  I volunteered to counsel and to the husband that would seemingly be an expensive exercise and most likely funds would be incurred by the proposed intervenor which they might not ultimately recover in the proceedings.

7. Counsel now have adopted a more appropriate position in that the proposed intervenor be granted leave to intervene this day, but could be invited to make application to the Court at the conclusion of the hearing, as between husband and wife, and address the Court as to the alleged debt then owing and the quantum of monies which it then seeks.  That would avoid cost and expense and I would consider that to be practical and prudent. 

8. There is no opposition to the intervention order being made today and neither the husband nor wife require the intervenor for the purposes of cross-examination or presentation of evidence provided the quantum of their debt is known to the Court in full particulars.  What I intend to do and with the consent of all parties is to pronounce orders by consent as to the intervention and structure the orders on the basis that there will be no division and payout of funds without the interests of the intervener being quantified and formally evaluated.

9. Insofar as it may hereafter be relevant this matter was before the Court for a short period today only though there were some prior discussions, the outcome of which I have not wholly accepted.  I make those observations as they may be relevant to costs of the day, if and when claimed by the proposed intervenor as against the husband or others.  I will have these reasons transcribed, placed upon the Court file and made available to the parties. 

I certify that the preceding nine
(9) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young 8 September 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………