Legal Services Board v Forster - [2015] VSC 136

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2009 6947

LEGAL SERVICES BOARD	Plaintiff
v
DAVID BRIAN FORSTER	Defendant

---

JUDGE:	ROBSON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2015
DATE OF JUDGMENT:	1 April 2015
CASE MAY BE CITED AS:	Legal Services Board v Forster
MEDIUM NEUTRAL CITATION:	[2015] VSC 136

---

PRACTICE AND PROCEDURE — Application to vary a freezing order over property of the defendant — Freezing order had been given over proceeds of sale of a property at which the defendant formerly conducted his legal practice — Defendant faced several legal proceedings relating to the conduct of his practice — Evidence of substantial legal expenses to defend those proceedings and other living expenses — Defendant a member of a superannuation fund that holds a substantial share portfolio — Evidence that defendant had been accessing assets of the superannuation fund — Defendant had not disclosed his benefits in the fund in the application — Held onus on defendant to establish that he did not have means to meet the expenses he would incur in defending the proceedings — Held that defendant had not established that onus — Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K P Hanscombe QC with Mr S R Senathirajah	Corrs Chambers Westgarth
For the Defendant	Dr J Walsh of Brannagh	Darryl Nelson
For the Receivers of Hollows Law Practice	Mr P D Corbett QC	Hall & Wilcox

HIS HONOUR:

Mr Forster has applied to vary an order made by Emerton J on 21 May 2010, upon the application of the Legal Services Board, freezing the proceeds from the sale of a building at Frankston owned by Mr Forster, where Mr Forster had previously carried on his practice known as Hollows Lawyers. Mr Forster has made two previous unsuccessful applications to vary the freezing order. The funds frozen are now $510,790.90.

On 12 April 2010, Emerton J appointed receivers of Hollows Lawyers under the Legal Profession Act 2004. Mr Forster unsuccessfully opposed the appointment of the receivers and was ordered to pay the Legal Services Board substantial costs of approximately $550,000.

Previously, Mr Forster unsuccessfully applied to Emerton J for a direction that the frozen funds be paid to the Legal Services Board in reduction of a moneys due by Mr Forster to the Legal Services Board under a costs orders made against Mr Forster on 16 May 2011 by the Costs Court. Mr Forster had been ordered to pay the costs of the Board of its successful application for the appointment of receivers to Mr Forster’s practice. Mr Forster appealed against the decision of Emerton J to the Court of Appeal in Forster v Legal Services Board.[1]
[1][2013] VSCA 131.

On the appeal, the Court of Appeal referred to the three reasons given by Emerton J for making the freezing order. Justice of Appeal Harper, with whom Weinberg JA and Kyrou AJA agreed, said that:

…the freezing…

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.

Keep reading for free

Create a free CaseChat account to read Legal Services Board v Forster and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSC 136
Decision Date: 1 April 2015

CaseChat Overview and Summary

In the matter of Legal Services Board v Forster, the respondent faced an application to vary a freezing order imposed on the proceeds of the sale of a property associated with his former legal practice. The respondent, Forster, was embroiled in multiple legal proceedings related to his conduct as a legal practitioner. The applicant, Legal Services Board, sought to ensure that Forster did not deplete the proceeds of the property sale, which were intended to cover his substantial legal expenses and other living costs. The dispute centred on whether Forster had the means to meet his expenses, despite his access to assets within a superannuation fund.

The primary legal issue before the court was whether Forster had discharged the onus of proving that he did not have the means to meet the expenses he would incur in defending the legal proceedings against him. The court had to consider the evidence of Forster's legal expenses and his access to the assets within his superannuation fund. Notably, Forster had not disclosed the full extent of his benefits in the fund when making the application to vary the freezing order.

The court held that the onus lay with Forster to establish that he did not have the means to meet his expenses. Given that Forster had not provided sufficient evidence to demonstrate that he was unable to cover his expenses from sources other than the proceeds of the property sale, the court found that he had failed to discharge this onus. Consequently, the application to vary the freezing order was dismissed, maintaining the protection of the proceeds for the purposes intended.

The final orders of the court upheld the existing freezing order over the proceeds of the property sale, ensuring that they remained available to cover Forster's legal expenses and living costs as originally intended.

Orders