MARSH & MARSH

[2015] FamCA 511

FAMILY COURT OF AUSTRALIA

MARSH & MARSH [2015] FamCA 511

FAMILY LAW – COSTS – Where the husband seeks orders that would allow him access to funds held by the wife’s previous solicitors – Where orders were made for the wife’s previous solicitors to hold a sum in their trust account – Where the solicitors no longer represent the wife – Where leave is granted for the application to proceed on an ex parte basis – Where the husband is declared the beneficial owner of the monies held by the wife’s previous solicitors.

APPLICANT: Mr Marsh

RESPONDENT: Ms Marsh

FILE NUMBER: SYC 3464 of 2009

DATE DELIVERED: 2 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 2 June 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Neil Jamieson & Associates

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That leave is granted for this application to proceed on an ex parte basis.

2. That I declare the amount of $23 168.11 and any interest accrued thereon standing to the credit of Ms Marsh in the Trust Account of Myer Partners Family Lawyers is beneficially owned by Mr Marsh.

1. That Myer Partners Family Lawyers should deal with that sum as directed by Mr Marsh.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3464 of 2009

Mr Marsh

Applicant

And

Ms Marsh

Respondent

REASONS FOR JUDGMENT

1. In these proceedings of 27 July 2011, Fowler J ordered that Mr Marsh (“the husband”) pay to the trust account of Broun Abrahams Burreket, the sum of $571 953 on account of Ms Marsh’s (“the wife”) costs of and incidental to the proceedings.  There was a further order restricting the use of the monies by the wife only to her legal costs and disbursements, and that in the event the funds were in excess of her requirements for the hearing, the surplus was to be returned to the husband.  That order was complied with.

2. There was then a change in solicitors of the wife, and on 14 December 2011, Fowler J directed that the funds be paid as to $39 895.44 to Meyer Partners Family Lawyers.  Again, this order was to be for the use of the wife for her costs and disbursements in the proceedings, and that any surplus was to be returned to the husband.  Those orders were complied with.

3. Once again, the wife changed solicitors.  There was, however, no application by the new solicitors for access to the funds held pursuant to the orders of Fowler J, and they remain with Meyer Partners Family Lawyers.

4. On 14 June 2013, there were interim orders made for the sale of the parties’ property at LL Street, KK Town (“KK Town property”), and those funds were to be dispersed as to $250 000 for the wife’s legal fees for the hearing, $100 000 for the husband’s legal fees for the hearing and the balance of the proceeds of sale was to be paid to the Australian Taxation Office in respect of outstanding tax owed.

5. No solicitor came onto the record for the wife, and the sum of $250 000 made pursuant to that order remained unpaid.  Ultimately, those lawyers, Uma Mahadeva Lawyers, brought an application on 12 September 2013 seeking that the balance of the sum of $23 168.11 in the trust account of Meyer Partners Family Lawyers, and $250 000 from the sale of the KK Town property be paid to them on account of their fees. 

6. Ultimately, an order was made for the $250 000 held in the controlled monies account as proceeds of sale of the KK Town property be paid to Uma Mahadeva Lawyers.  No order was made in relation to the funds held in the Meyer Partners Family Lawyers trust account.

7. The proceedings have been concluded, and the orders that were made have been put into effect.  There is no possibility of the wife incurring further legal costs in the determination of those proceedings.  Those funds therefore remain funds paid by the husband pursuant to the orders of Fowler J.  As they are surplus to the wife’s requirements for the costs of her appearances in the proceedings they should be returned to the husband.  Meyer Partners Family Lawyers did not oppose that order.

8. I declare that the amount of $23 168.11, and any interest accrued thereon, standing to the credit of Ms Marsh in the trust account of Meyer Partners Family Lawyers is beneficially owned by Mr Marsh.  I direct that Meyer Partners Family Lawyers should deal with that sum as directed by Mr Marsh. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 2 June 2015.

Associate:  K. Bullard        

Date:  2 July 2015