Gerber and Gerber and Anor

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.