Harlen & Hellyar - [2020] FamCA 21

FAMILY COURT OF AUSTRALIA

HARLEN & HELLYAR

[2020] FamCA 21

FAMILY LAW – PRACTICE AND PROCEDURE – Interlocutory Application – where applicant contended she had imparted confidential information to the respondent’s solicitors about her affairs when they were acting for her – Where applicant sought to restrain the respondent’s solicitors from acting for the respondent – Where respondent sought dismissal of application – Where respondent’s solicitor a witness to events in issue in the proceeding – Whether there had been undue delay in the bringing of the application – Whether the respondent would be prejudiced – Application granted.

Family Law Act 1975 (Cth) s 90UC
Family Law Rules 2004

Argyll v Argyll [1967] 1 Ch 302
Bowen v Stott [2004] WASC 94
Dalton & Dalton (2017) FLC 93-773
Davey v Silverstein [2019] VSC 302
Grimwade v Meagher [1995] 1 VR 446
Holborow v Rudder [2002] WASC 265
Kallinicos & Hunt 64 NSWLR 561
McMillan & McMillan (2000) FLC 93-048
Miller v Martin [2019] VSCA 86
Oram & Lambert (No. 2) [2018] FamCAFC 161
Osferatu & Osferatu [2015] FLC 93-666
Bolkiah, Prince Jefri v KPMG [1999] 2 AC 222
Sellers & Burns and Anor [2019] FamCAFC 113
Thevenaz v Therenaz (1986) FLC 91-748

APPLICANT:

Ms Harlen

RESPONDENT:

Mr Hellyar

FILE NUMBER:

MLC

13634

2017

DATE DELIVERED:

28 January 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

2 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr St John QC

SOLICITOR FOR THE APPLICANT:

Peter Szabo Family Law

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC

Mr Ashley Richardson

SOLICITOR FOR THE RESPONDENT:

Z Lawyers

Orders

That Z Lawyers in the State of Victoria, Solicitors, be restrained from acting on behalf of the respondent in these proceedings.
That the matter be listed before Registrar Sudholz on 14 February 2020 at 9:30 am for further directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harlen & Hellyar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13634 of 2017

Ms Harlen

Applicant

And

Mr Hellyar

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in this proceeding was in a relationship and cohabited with the respondent in the period 2012 to 2017. Amongst other things she seeks to have declared void, or to have set aside, a s 90UC Agreement purportedly executed on 10 February 2014 (“the 2014 Financial Agreement”). The respondent seeks the enforcement of the 2014 Financial Agreement as if it were an order of the Court pursuant to s…

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 Harlen & Hellyar

Details

AGLC: Harlen & Hellyar [2020] FamCA 21
Case: [2020] FamCA 21
Decision Date: 28 January 2020

CaseChat Overview and Summary

In the Supreme Court of Victoria, Justice McEvoy considered an application by the applicants, Harlen and Hellyar, seeking to restrain Z Lawyers, solicitors in Victoria, from acting on behalf of the respondent in the proceedings. The precise nature of the underlying dispute between the parties was not detailed in the provided text, but the application concerned a potential conflict of interest or breach of professional conduct by the respondent's legal representatives.

The central legal issue before the Court was whether Z Lawyers should be prohibited from continuing their representation of the respondent. This required the Court to assess the conduct of Z Lawyers in the context of professional legal ethics and rules governing solicitor-client relationships, particularly concerning any potential prejudice or unfair advantage that might arise from their continued involvement.

Justice McEvoy ordered that Z Lawyers be restrained from acting on behalf of the respondent in these proceedings. The Court also directed that the matter be listed for further directions before Registrar Sudholz on 14 February 2020.

Orders

Orders of the court

That Z Lawyers in the State of Victoria, Solicitors, be restrained from acting on behalf of the respondent in these proceedings.

That the matter be listed before Registrar Sudholz on 14 February 2020 at 9:30 am for further directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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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