Finazzi & Finazzi - [2012] FamCA 102

FAMILY COURT OF AUSTRALIA

FINAZZI & FINAZZI

[2012] FamCA 102

FAMILY LAW – PROPERTY – Partial property settlement – where wife seeks $350,000 to pay legal fees and other expenses – where approximately $1.4 million has already been spent by the parties on legal and expert fees, of which the wife has paid the significantly greater proportion – where the trial is yet to conclude – where further fees will be incurred when the trial is completed – whether the interests of justice require the exercise of power under s 79 and s 80(1)(h) on an interim basis – where the wife provides evidence that she is unable to obtain funds from elsewhere to pay her legal fees – where the funds sought must be obtained either by way of further loan from the husband’s business, or through the sale of certain real property – where the husband says he cannot borrow the amount sought from the business (without running the risk of sending the business into liquidation), and should the properties be sold, loans over the properties will result in the bank immediately taking 90 per cent of any proceeds – where neither one party nor the other should be in a more advantageous position in respect of the payment of fees in preparation for trial when the source of funding is the business – where orders made providing for a payment of up to $150,000 to each of the solicitors for the wife and the husband.

Evidence Act 1995
Family Law Act 1975 (Cth)

Blueseas Investments Pty Ltd & Mitchell (1999) FLC 92-856
Gabel & Yardley (2008) FLC 93-386

JEL & DDF (2001) FLC 93-075
Mallet v Mallet (1984) 156 CLR 605; (1984) FLC 91-507
SL & EHL [2005] FamCA 132

Steinbrenner & Steinbrenner [2008] FamCAFC 193
Strahan & Strahan (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92-693
Vanin & Vanin [2012] FamCA 16
Wenz & Archer (2008) 40 Fam LR 212

APPLICANT:

Ms Finazzi

RESPONDENT:

Mr Finazzi

FILE NUMBER:

BRC

3023

2010

DATE DELIVERED:

1 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

20 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page SC

SOLICITOR FOR THE APPLICANT:

Jones Mitchell Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirk SC

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

IT IS ORDERED THAT

As and by way of partial settlement of property pursuant to s 79 of Family Law Act 1975 (Cth):

As and from the date of this Order each of the parties shall do all such things and sign all such documents as might be needed so as to require their respective legal practitioners to:
(a)provide to each of them via e-mail a memorandum of account in respect of costs and outlays owing by each of them to their respective legal practitioners as at 4.00pm on Friday 16 March 2012 and by that time on each second Friday thereafter;
(b)provide contemporaneously therewith to the solicitor for the other party…

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 Finazzi & Finazzi

Details

AGLC: Finazzi & Finazzi [2012] FamCA 102
Case: [2012] FamCA 102
Decision Date: 1 March 2012

CaseChat Overview and Summary

In *Finazzi & Finazzi*, the wife sought an interim property settlement of $350,000 to cover her legal fees and other expenses. The parties had already incurred approximately $1.4 million in legal and expert fees, with the wife having paid a significantly larger proportion. The trial had not yet concluded, and further fees were anticipated. The wife provided evidence that she was unable to secure funds from other sources, and the proposed funding was either through a further loan from the husband's business or the sale of real property. The husband contended that borrowing the requested amount from his business risked liquidation, and selling the properties would result in the bank taking 90% of any proceeds due to existing loans.

The court was required to determine whether the interests of justice necessitated an interim exercise of its powers under sections 79 and 80(1)(h) of the *Family Law Act 1975* (Cth) to address the wife's immediate need for funds to pay her legal fees. The court also considered the husband's submissions regarding the financial implications of the proposed funding methods for his business and the real property.

Murphy J reasoned that neither party should be in a more advantageous position regarding the payment of fees in preparation for trial when the source of funding was the husband's business. The court acknowledged the significant legal costs already incurred and the ongoing need for legal representation. The court ultimately made orders for a partial property settlement to facilitate the payment of legal fees.

The court ordered that the husband was to pay up to $150,000 to his own legal practitioners and up to $150,000 to the wife's legal practitioners within five working days of receipt of their accounts. The husband was also required to provide documentation identifying the source and accounting treatment of these payments. Upon the husband reaching the $150,000 limit for each set of practitioners, further payments were to be subject to notice to the other party or court leave. The question of how these interim payments would be treated in the final property settlement was reserved to the trial.

Orders

Orders of the court

IT IS ORDERED THAT

As and by way of partial settlement of property pursuant to s 79 of Family Law Act 1975 (Cth):

As and from the date of this Order each of the parties shall do all such things and sign all such documents as might be needed so as to require their respective legal practitioners to:

(a) provide to each of them via e-mail a memorandum of account in respect of costs and outlays owing by each of them to their respective legal practitioners as at 4.00pm on Friday 16 March 2012 and by that time on each second Friday thereafter;

(b) provide contemporaneously therewith to the solicitor for the other party via e-mail a copy of each such account

The husband shall, within five (5) working days of the receipt of each of the accounts referred to in paragraph 1 of these Orders:

(a) cause to be paid to his legal practitioners and the legal practitioners for the wife the amount of each such account until he shall have paid to each such practitioner not more than the total amount of $150,000;

(b) contemporaneously with each such payment, cause to be provided to the legal practitioners for the wife all such documents as are necessary so as to identify the source of the funds so paid and the manner in which all such payments are entered in the books of account of the entity or entities from which the payments emanated.

Upon payment by the husband of a total amount of $150,000 to each of his legal practitioners and the legal practitioners for the wife in accordance with paragraphs (1) and (2) of these Orders:

(a) Paragraph 1of these Orders be discharged; and

(b) Each of the parties shall thereafter and until the conclusion of the trial of this matter provide to the other via e-mail a copy of each and all accounts received by each of them from their respective legal practitioners within five working days of receipt of same; and

(c) each of the parties be restrained from making any further payments to their legal practitioners unless and until the party first gives not less than 14 days notice of their intention to pay any such fee, specifying the amount intended to be so paid and the source or sources of funds intended to be used in respect of any such payment or unless the court otherwise grants leave.

The question of how each and all payments provided for in these Orders shall be treated as between the parties in the final settlement of property between them be reserved to the trial before Murphy J continuing from 4 June 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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