Mitty and Mitty and Ors (No. 3)

[2008] FamCA 1043

FAMILY COURT OF AUSTRALIA

MITTY & MITTY AND ORS (NO. 3) [2008] FamCA 1043

FAMILY LAW – PRACTICE AND PROCEDURE – compliance with orders for interim costs – s 106B applicable to interim costs

Family Law Act 1975 (Cth)

Chorn and Hopkins (2004) FLC 93-204

APPLICANT: Ms Mitty

1^st RESPONDENT: Mr Mitty

3^rd RESPONDENT: Mitty Pty Ltd

4^th RESPONDENT: Ms N

5^th RESPONDENT: Ms S

6^th RESPONDENT: Mr M & Co.

FILE NUMBER: SYC 8326 of 2007

DATE DELIVERED: 18 November 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 17 September 2008 and also dealt with in chambers by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

FOR THE FIRST RESPONDENT: In person

COUNSEL FOR THE 3^RD, 4^TH AND 5^TH RESPONDENTS:
Mr Brzostowski SC

COUNSEL FOR THE 6^TH RESPONDENT: Mr Berry

Orders

1. The payment of the sum of $25,000 made by the husband to the solicitors for the husband in payment of his fees (being part of the total sum paid for such fees) is set aside.

2. The 6^th respondent pay within 14 days the sum of $12,500 to the credit of their trust account to be held upon trust pending further order of the Court

   PROVIDED however that if the Court makes no further order as to its disposition within 28 days from today’s date they are ordered to pay the same to the solicitors for the wife.

3. Leave is granted to the 3^rd, 4^th and 5^th Respondents to apply on short notice within 28 days of the date of this order for such further orders in relation to this order as they may be advised.

IT IS NOTED that publication of this judgment under the pseudonym Mitty & Mitty and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326  of 2007

MS MITTY

Applicant

And

MR MITTY

1^st Respondent

And

MITTY PTY LTD

3^rd Respondent

And

MS N

4^th Respondent

And

MS S

5^th Respondent

And

MR M & CO.

6^th Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court follow the making of a “dollar for dollar” interim costs order and the subsequent payment of the husband’s former solicitor’s costs with funds which originated from sources other than the husband.  Questions arise as to whether the payment of the costs attracted the requirement for compliance with the dollar for dollar order made and, if so, whether the solicitor who was paid, and who was aware of the order, should be required to reinstate some or all of the funds so paid by way of payment to the wife who had the benefit of the interim costs order.

Background Facts

1. By order made on 12 March 2008, Judicial Registrar Loughnan ordered as follows:

   “That the husband pay or cause to be paid as and when payment…