Hanigan & Hanigan
[2024] FedCFamC1F 426
•21 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Hanigan & Hanigan [2024] FedCFamC1F 426
File number: BRC 12409 of 2020 Judgment of: CAREW J Date of judgment: 21 June 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks that the husband provide notice before making transactions above a certain amount for various entities controlled by him, litigation funding of $150,000, and the sale of real property – Where the husband opposes the orders sought by the wife – Where requiring the husband to provide notice to the wife is an appropriate interim remedy – Where a dollar-for-dollar order will ‘level the playing field’ between now and trial – Where the wife’s application is otherwise dismissed.
FAMILY LAW – COSTS – Where there is no order as to costs.
Legislation: Family Law Act 1975 (Cth) s 117 Number of paragraphs: 18 Date of hearing: 21 June 2024 Counsel for the Applicant: Mr S Taylor Solicitor for the Applicant: SLF Lawyers Counsel for the Respondent: Dr M Sayers Solicitor for the Respondent: Michael Lynch Family Lawyers ORDER
BRC 12409 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HANIGAN
Applicant
AND: MR HANIGAN
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
21 JUNE 2024
THE COURT ORDERS:
1.That until further Order, the husband be restrained by injunction from selling, transferring, assigning, encumbering and/or alienating any assets owned by and/or controlled by him in his personal capacity and/or a Director or Shareholder in the sum of more than $25,000 for the following, without providing 7 days’ notice to the wife prior to the transaction:
(a)B Pty Ltd;
(b)C Pty Ltd;
(c)D Pty Ltd;
(d)E Pty Ltd;
(e)Hanigan Family Trust;
(f)Hanigan Family Trust No.1; and
(g)F Trust.
2.In the event that the husband pays or causes to be paid, to his solicitors, from whatever source, legal costs incurred from 22 June 2024 or outlays including counsel fees then a corresponding amount be forthwith paid to the wife’s solicitors.
3.The wife’s Application in a Proceeding filed 4 June 2024 be otherwise dismissed.
4.That there be no order as to costs.
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).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
The wife and husband are involved in substantive property proceedings which are listed before me for trial for five days commencing 27 July 2024. The balance sheet indicates a negative property pool, if I accept the evidence of the single expert, Mr H.
Without objection, Mr Taylor of counsel for the wife contended from the bar table that a shadow expert retained by the wife has prepared a report which, if the wife is granted leave to rely upon at trial as an adversarial expert, will increase the property pool to approximately $2,000,000.
Again from the bar table, I was told that the single expert and adversarial expert have conferred and the single expert has indicated his intention to amend his valuation report, though the pool will still be in the negative according to the single expert.
The Application in a Proceeding filed 4 June 2024 by the wife was listed urgently given the pending trial. By reference to the paragraphs in the Application in a Proceeding, Mr Taylor indicated that the wife does not press paragraphs 2, 3 and 5 but does press paragraphs 4 and 6 to 9, although Mr Taylor quite properly recognised the difficulty with the interim sale of property order envisaged by paragraphs 7 to 9.
The paragraphs pressed then are set out below:
4.That the Husband be restrained by injunction from selling, transferring, assigning, encumbering and/or alienating any assets owned by and/or controlled by him in his personal capacity and/or a Director or Shareholder in the sum of more $20,000 for the following, without providing 7 days’ notice to the Wife prior to the transaction:
a. [B Pty Ltd];
b. [C Pty Ltd];
c. [D Pty Ltd];
d. [E Pty Ltd];
e. [Hanigan] Family Trust;
f. [Hanigan] Family Trust No.1; and
g. [F] Trust.
…
6. That pursuant to s 117 of the Family Law Act 1975 (Cth), within 30 days from the date of these Orders, the Husband is to transfer to an account nominated by the Wife, the sum of 150,000.00 by way of litigation funding.
7. That within 7 days from the date of these Orders, the Respondent Husband shall do all things and sign all documents that are necessary to remove the caveat over the property situate at [G Street, Region J] in the state of Queensland (Caveat Number […]).
8. That within 60 days from the date of the Orders being made, the property situated at [G Street, Region J] in the state of Queensland (“The [Region J] property”) be sold and for the purposes of that sale: -
a. That the [Region J] Property is listed for sale with an Estate Agent of the Wife’s choice (“the Agent”) and a conveyancer of the Wife’s choice.
b. Upon the settlement of the [Region J] Property, the proceeds of sale are disbursed as follows:
i. Firstly, to the payment of all costs in association with the sale, including agents’ fees, marketing fees and conveyancing fees;
ii. Secondly, the remaining proceeds are to be deposited into the Wife’s nominated bank account by way of part property settlement.
9. That the Wife is to provide full and frank disclosure to the Husband within 7 days of receiving any update in relation to the sale of the [Region J] property.
In relation to paragraph 4, Mr Taylor indicated that his client would be amenable to a figure greater than $20,000, although did not indicate what that might be.
In relation to paragraph 6, Mr Taylor submitted that the wife could identify funds from which $150,000 might be paid, and I refer to exhibits 1 and 2, being bank statements for entities owned by the husband and conceded by him to be properly part of the property pool. It was conceded that in the alternative to such a payment to the wife, a ‘dollar for dollar’ order might be appropriate. A ‘dollar for dollar’ order would require the husband to pay to wife’s solicitors any sum paid by him or on his behalf from whatever source on account of legal fees to his solicitors.
The husband has paid his lawyers to date over $600,000 including outlays. His estimated costs of trial are up to $185,000. The wife on the other hand, while incurring legal fees of $509,000 to date including outlays, has only been only able to pay $84,000. Her estimated fees for a five-day trial including outlays are estimated to be a further $175,000. The wife’s lawyers have represented her to date on a deferred fee basis and paid outlays on her behalf on occasion. There is no evidence that the wife’s lawyers will not continue to represent her on that basis.
The husband resists the relief sought by the wife, contending variously that he does not have the funds to pay the $150,000 sought by way for litigation funding, that the wife has already received her property entitlement, and that he wishes to retain the real property that the wife seeks to sell. The husband also contends that an order requiring him to give notice to the wife as sought by paragraph 4 of her Application in a Proceeding would create difficulty in the day‑to-day operation of his business. Although, Dr Sayers of counsel for the husband conceded that if the amount for which notice is required is increased to $25,000 that would, to a degree, at least address any difficulties e.g., the payment due to the liquidator in early July of $25,000. The husband’s primary position remained that no such order should be made.
In my view, given the limited imposition on the husband by paragraph 4, and the competing allegations about the disposal of property without disclosure, which is yet to be determined, an order in terms of paragraph 4, until further order, with an increased amount to $25,000 is an appropriate remedy on an interim basis.
I am not persuaded that simply pointing at funds in a particular bank account on a particular day, is sufficient to make an order of $150,000 as sought by the wife, particularly where the statements relate to the main trading entity of the business operated by the husband. This is of course demonstrated by exhibit 3, which indicates that the balance for one of the bank accounts relied upon by the wife, for a more recent date, namely, 14 May 2024, is only $3,853.72.
Nevertheless, it seems to me that the Court is concerned with attempting to ‘level the playing field’, as it is referred to in the authorities, between now and the trial and that an appropriate way to do that is for a ‘dollar-for-dollar’ order, which would see the wife receiving a corresponding amount to that which the husband pays in respect of his legal fees.
Dr Sayers for the husband, while resisting any ‘dollar-for-dollar’ order, submitted in particular that if a ‘dollar-for-dollar’ order is made it should not include any payment for solicitor fees, as opposed to counsel fees and outlays, given that there is no evidence that the wife’s lawyers will not continue to act as they have to date on a deferred fee basis.
While that may be the case, the husband has had the use of over $600,000 to pay his legal fees as compared to the wife’s $84,000. Ultimately, that might be an appropriate use of funds that would otherwise have been available for distribution between the parties but on an interim basis and given that vast disparity, I consider it appropriate to make a ‘dollar-for-dollar’ order in relation to both fees and outlays paid by the husband being both solicitor and counsel fees and if that occurs then a corresponding amount should be paid to the wife’s solicitors.
Lastly then in relation to the interim property order in which the wife seeks the sale of a particular property and the distribution of the balance proceeds to the wife by way of an interim property settlement, I am not persuaded that such an order should be made in circumstances where the particular property sought to be sold is one which the husband agitates to retain at trial and the appropriate concession made by counsel for the wife that even if an order as sought were made, there is no prospect of that being achieved before trial. There are substantial issues for trial and factual findings will be made at the appropriate time.
Accordingly, I make the order as set out above.
Costs
Mr Taylor made an oral application for costs on behalf of the wife submitting that the wife has had substantial success. The husband resisted any order for costs and submitted that neither party had been wholly successful and therefore there should be no order as to costs.
I am not satisfied that an order would be just in the circumstances having regard to the relevant matters in s 117 of the Family Law Act 1975 (Cth).
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 21 June 2024
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