Laurens and Laurens (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAURENS & LAURENS (No.2) [2017] FCCA 109

Catchwords:
FAMILY LAW – Application for costs against respondent’s solicitor after enforcement application.

Legislation:

Family Law Act 1975, ss.75(2), 79A, 92, 117(1), 117(2A)

Federal Circuit Court Rules 2001, r.21.07, sch.1, pt.21
Family Law Rules 2004, pt.19.3, sch.3
Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, r.11.3, 42, 54

Cases cited:

Laurens & Laurens [2015] FCCA 2754

Varley & Varley [2016] FCCA 2609

Tang & Keats [2016] FamCA 99
Limousin and Limousin (Costs) [2007] FamCA 1178
Ridehalgh v Horsfield [1994] 3 All ER 848
Cassidy & Murray [1995] FLC 92-633
Martin & Harris & Ors [2010] FamCA 239
In the Marriage of Kohan (1992) 16 Fam LR 245
Victorian Legal Services Commissioner v Galatas (Legal Practice) [2016] VCAT 395
Prantage & Prantage [2013] FamCAFC 105
Medlon v Medlon (No.6) (Indemnity Costs) (2015) FLC 93 – 664
In the Marriage of Monday & Bowman (1997) 22 Fam LR 321

Applicant: MR LAURENS

Respondent: MS LAURENS

File Number: MLC 8464 of 2014

Judgment of: Judge Harland

Hearing date: 19 October 2016

Date of Last Submission: 9 December 2016

Delivered at: Melbourne

Delivered on: 24 January 2017

REPRESENTATION

Counsel for the Applicant: Ms Marshall

Solicitors for the Applicant: Anthonys Solicitors

Counsel for the Respondent: Mr Alexander

Solicitors for the Respondent: Lanham Lawyers Pty Ltd

ORDERS

1. That within 60 days of the date of these orders Jodie Maree Lanham pay the husband’s costs in the sum of $13,123.00.

2. That within 21 days Ms Lanham file submissions with respect to whether or not her conduct should be referred to the Legal Services Commissioner of Victoria.

IT IS NOTED that publication of this judgment under the pseudonym Laurens & Laurens (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8464 of 2014

MR LAURENS

Applicant

And

MS LAURENS

Respondent

REASONS FOR JUDGMENT

1. This is a cautionary tale for solicitors who hold money on trust for the benefit of both parties in family law proceedings.

2. By agreement the wife’s solicitors acted on the sale of property on behalf of both parties after a bitterly contested property hearing. It is not unusual for one of the parties’ solicitors to agree to conduct the sale.  This is particularly the case where one or both of the firms does conveyancing work as well as family law. No doubt this is a costs saving exercise for the parties. However solicitors need to be very mindful that when agreeing to do the conveyancing which necessarily involves implementing orders. This is because in this aspect they are not simply acting for their client. If they hold proceeds of sale they do so as trustee for both parties. This is what happened here.

3. The present application before me seeks an order that the wife’s solicitors pay the husband’s costs of bringing an enforcement application on an indemnity basis.

Parties’ positions with respect to costs

1. The husband seeks…