Gerber and Gerber and Anor - [2012] FamCA 1154

FAMILY COURT OF AUSTRALIA

GERBER & GERBER AND ANOR

[2012] FamCA 1154

FAMILY LAW – Property – Intervener (former solicitor for husband) claiming “fruits of litigation” lien over husband’s entitlements held in a controlled money account – Wife claiming intervener’s interest to monies held is subservient to her interest in a prospective costs order – Finding that intervener has immediate right to monies held to husband’s credit and wife has a prospective right in the event a costs order is made in her favour.

Family Law Act 1975 (Cth)

Ex parte Patience; Makinson v the Minister (1940) 40 SR (NSW) 96
Patterson v Cohen [2005] NSWSC 635
Twigg and Twigg v Keady and Keady (1996) FLC 92-712, [1996] FamCA 115
Worrell v Power and Power [1993] FCA 551, (1993) 118 ALR 237; (1993) 46 FCR 214

APPLICANT:

Ms Gerber

FIRST RESPONDENT:

Mr Gerber

INTERVENOR:

Mr B

FILE NUMBER:

PAC

4999

2010

DATE DELIVERED:

8 March 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

2 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Iuliano

SOLICITOR FOR THE FIRST RESPONDENT:

No appearance
(Self-represented Litigant)

SOLICITOR FOR THE INTERVENER

Mr B

Orders

Orders as to School fees:

That the document produced to me, initialled by me and dated with today’s date, shall become Court’s Exhibit X in the proceedings as between the husband and the wife concerning amounts of money held by the Australian Scholarships Group Friendly Society Limited.
That orders are made in accordance with paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of that document, copy annexed hereto.

Orders as to the Application of the Intervener:

That leave is granted to Mr B to intervene in these proceedings
It is noted that the amount presently held to the husband’s credit in controlled money account being Commonwealth Bank Account Number … is $129,488.84. Of that sum an amount of $10,000 is to be retained as a result of the order of the Full Court of the Family Court of Australia.
That after the expiration of twenty-eight (28) days from the date of service of these orders upon the husband the parties shall do all things and execute all documents necessary to cause to be paid to the Trust Account of C Pty Ltd (the corporate entity of the Intervener) all monies to which the Respondent Mr Gerber may be entitled to receive from the sale of real property at Suburb D in the amount of $119,488.84 together with any interest accrued and payable in respect of the account.
That the Intervener serve upon the husband a copy of these orders as soon as possible. Such service may be proved by affidavit.
That the Intervener within twenty-one (21) days of these orders serve upon the husband an itemised account of fees and disbursements. Such service may be proved by affidavit.
That I dismiss all outstanding applications in a case and all responses to such applications save and accept the wife’s application that…

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 Gerber and Gerber and Anor

Details

AGLC: Gerber and Gerber and Anor [2012] FamCA 1154
Case: [2012] FamCA 1154
Decision Date

CaseChat Overview and Summary

The case of *Gerber & Gerber and Anor* [2012] FamCA 1154 involved competing claims over a sum of money held in a controlled money account to the credit of the First Respondent, Mr Gerber. The Applicant, Ms Gerber, sought to preserve these funds for a potential costs order in her favour, while an Intervener, Mr B, Mr Gerber's former solicitor, claimed a "fruits of litigation" lien over the monies. The Family Court of Australia, presided over by Collier J, had to determine the priority of these competing interests.

The central legal issues before the Court were whether the Intervener's claim to a "fruits of litigation" lien took precedence over the wife's prospective claim for a costs order, and the nature and enforceability of the Intervener's claimed lien. The Court also considered the validity of an earlier injunction restraining the husband from dealing with the funds, in light of the Family Law Act 1975 (Cth).

Collier J reasoned that while the Intervener's claim to a lien was valid, it did not automatically crystallise at the time of the initial judgment, particularly as the Intervener was still acting for the husband at that point. The Court found that the wife's claim was contingent on a future costs order being made by the trial judge, Coleman J, and thus represented a prospective right. Conversely, the Intervener's claim, though not yet fully assessed, was an immediate right to the funds, subject to the Court's determination of its priority. The Court affirmed its jurisdiction under section 114 of the Family Law Act to make injunctions in relation to a party's property.

Ultimately, the Court ordered that the Intervener had an immediate right to the monies held to the husband's credit in the controlled money account, specifically $119,488.84 plus accrued interest, to be paid to the Intervener's trust account. The wife's interest in the funds was recognised as a prospective right, contingent on a costs order being made in her favour by Coleman J. The Court dismissed all outstanding applications except for the wife's application for costs.

Orders