Markell and Markell and Anor (No 2) - [2015] FamCA 856

FAMILY COURT OF AUSTRALIA

MARKELL & MARKELL & ANOR (NO 2)

[2015] FamCA 856

FAMILY LAW – PROPERTY – Interim – Husband’s Application in a Case for litigation funding for the purpose of funding his criminal appeal proceedings – Orders proposed by the husband and wife to be made by consent – Application in a Case by the assignee of the debt said to be owed to the husband’s former barrister in his criminal proceedings to intervene as a creditor – Where the quantum of any debt owing to the proposed creditor is disputed and has not been the subject of determination in any civil court – Where there is no existence of a contract between the former barrister and husband which may be enforced, despite provision in the Legal Profession Act 2004 (NSW) permitting such a contract to be entered and enforced – Where there is no evidence before the Court that the current intervener has assigned any debt to the proposed intervener – Where the wife submits that the husband’s debt to the current intervener and proposed intervener should not be prioritised over her legitimate claim pursuant to s 79 of the Family Law Act 1975 (Cth) – Proposed intervener’s Application in a Case refused – Orders otherwise made as sought by the husband and wife.

Family Law Act 1975 (Cth)
Legal Profession Act 2004 (NSW)

Dimos v Hanos and Egan [2001] VSC 173
In the Marriage of Kowaliw (1981) FLC 91-092
Keesing v Adams [2010] NSWSC 336
Paramount Lawyers Pty Ltd v Maneschi [2012] NSWSC 877
Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111

APPLICANT:

Ms Markell

RESPONDENT:

Mr Markell

INTERVENER:

B Lawyers (ACN …)

FILE NUMBER:

BRC

6823

2012

DATE DELIVERED:

13 October 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

13 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Evans, Evans & Company Family Lawyers

THE RESPONDENT:

In person (by telephone)

THE INTERVENER:

No appearance

Orders

IT IS ORDERED THAT:

Leave is given to Mr M to file by leave today:
a. Application in a Case to intervene in the proceedings; and
b. an affidavit of Mr M sworn on 12 October 2015.

Mr M’s Application in a Case to intervene in the proceedings filed by leave today is refused and is adjourned to a date to be fixed.

IT IS ORDERED BY CONSENT AS BETWEEN THE HUSBAND AND THE WIFE:

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT:

The Minutes of Consent remain upon the Court file.

IT IS FURTHER ORDERED THAT:

Each party’s costs of and incidental be reserved.

MINUTES OF CONSENT

That the following Applications filed by the Husband be dismissed:-
a.Contravention Application filed 20th November, 2014;
b.Application in a Case filed 5th June, 2015;
c.Contravention Application filed on 6th July, 2015; and
d.Application…

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 Markell and Markell and Anor (No 2)

Details

AGLC: Markell and Markell and Anor (No 2) [2015] FamCA 856
Case: [2015] FamCA 856
Decision Date: 13 October 2015

CaseChat Overview and Summary

In the matter of *Markell and Markell and Anor (No 2)*, Kent J of the Family Court of Australia considered an application by Mr M to intervene in proceedings between the Husband and the Wife. Mr M was granted leave to file his application and an affidavit, however, his application to intervene was ultimately refused and adjourned.

The court was required to determine whether to grant Mr M leave to intervene in the proceedings and, if so, on what terms. The primary dispute between the Husband and Wife, as evidenced by the Minutes of Consent, concerned the dismissal of various applications filed by the Husband and the distribution of funds for legal costs, child-related expenses, and council rates.

The court's reasoning and applied principles are primarily reflected in the consent orders agreed between the Husband and Wife. These orders provided for the dismissal of four applications filed by the Husband. Crucially, the parties consented to the release of specific sums of money from their mortgagee bank, Westpac Banking Corporation, for the Husband's legal costs in criminal proceedings, for the Wife's benefit, and for various child-related expenses and property outgoings. The classification of these released sums was reserved for a final hearing.

Orders

Orders of the court

IT IS ORDERED THAT:

Leave is given to Mr M to file by leave today:

a. Application in a Case to intervene in the proceedings; and

b. an affidavit of Mr M sworn on 12 October 2015.

Mr M’s Application in a Case to intervene in the proceedings filed by leave today is refused and is adjourned to a date to be fixed.

IT IS ORDERED BY CONSENT AS BETWEEN THE HUSBAND AND THE WIFE:

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT:

The Minutes of Consent remain upon the Court file.

IT IS FURTHER ORDERED THAT:

Each party’s costs of and incidental be reserved.

MINUTES OF CONSENT

That the following Applications filed by the Husband be dismissed:-

a. Contravention Application filed 20th November, 2014;

b. Application in a Case filed 5th June, 2015;

c. Contravention Application filed on 6th July, 2015; and

d. Application in a Case filed 25th August, 2015.

That, conditional upon the making of Order 1 and upon the Undertakings of the Husband and the Solicitor for the Husband in the criminal proceedings, hereby accepted, the parties shall forthwith do all acts and things as are necessary to instruct their mortgagee bank, the Westpac Banking Corporation to pay the following sums:-

a. The sum of $25,000 to the trust account of Richard Cummins, Solicitor of Sydney for the benefit of the Husband for the purposes of the legal costs to maintain the Husband’s appeal to the Court of Criminal Appeal PROVIDED THAT should any portion of the funds remain unused at the conclusion of the Husband’s Court of Criminal hearing, they shall be paid into the mortgage accounts owed by the parties jointly and attaching to their existing real properties, to the Westpac Banking Corporation; and

b. The sum of $25,000 to the trust account of Evans & Company Family Lawyers for the benefit of the Wife; and

c. The following sums/amounts:-

i. $5,900 for payment to N Dentists for orthodontic services required for the child E; and

ii. $7,328 for payment to N Dentists for orthodontic services required for the child F; and

iii. Such sums as are required to meet payment of the following expenses as and when due:-

1. G Town Council Rates and Levies (including water charges) for the two (2) properties at Suburb O and J Street; and

2. Body Corporate Levies for J Street.

iv. Such sum as and when due as shall be required for the child D to study at TAFE College, but limited only to those sums for which a Fee HELP or HECS application cannot successfully be made.

That the parties do all acts and things as are necessary to direct Westpac Banking Corporation to pay to the Husband, the balance Bank Account Number … in the name of the Husband being approximately $1,000, and thereafter, to close the account.

That the classification of the sums released by paragraph 2 be a matter reserved for determination at Final Hearing.

Background

Background to the litigation

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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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