Mullins & Ors and Mullins & Ors - [2017] FamCA 786

FAMILY COURT OF AUSTRALIA

MULLINS AND ORS & MULLINS AND ORS

[2017] FamCA 786

FAMILY LAW – PROPERTY – INTERIM – Where orders are made requiring an accountant to examine and evaluate company records for the purposes of valuing the interests of the parties – Where the Husband is no longer able to pay his solicitors from his own resources – Where a dollar for dollar litigation funding order is made.

Family Law Act 1975 (Cth)

FIRST APPLICANT:

Mr A Mullins

SECOND APPLICANT:

B1 Pty Ltd

THIRD APPLICANT:

B2 Pty Ltd ATF B Trust

FIRST RESPONDENT:

Ms Mullins

SECOND RESPONDENT:

Mr C Mullins

THIRD RESPONDENT:

Mr D Mullins

FOURTH RESPONDENT:

B3 Pty Ltd

FILE NUMBER:

BRC

1999

2017

DATE DELIVERED:

4 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

18 September 2017

REPRESENTATION

COUNSEL FOR THE FIRST AND THIRD APPLICANTS:

Mr Alexander

SOLICITOR FOR THE FIRST AND THIRD APPLICANTS:

Moloney MacCallum Lawyers

COUNSEL FOR THE RESPONDENTS:

Mr Jennings

SOLICITOR FOR THE RESPONDENTS:

Nyst Legal

Orders

That the Application for the Fourth Respondent, B3 Pty Ltd, to be removed as a party to the proceedings, is dismissed.
That the company, E Pty Ltd ACN …, be joined as the Fifth Respondent to the proceedings.
That the instructions to Mr F of G Accountants be enlarged to include instructions to undertake a forensic examination and evaluation of the records of the Second Applicant and of the Fourth and Fifth Respondents from the 2013 financial year to the financial year ended June 2017 to determine, as far as is practicably possible, the value of the husband’s and the wife’s interests in B1 as at 30 June 2017, including having regard, in particular, to any amounts owing as at that date to the Second Applicant by either the Fourth or Fifth Respondents.
That each of the parties has liberty to apply to the Court for further orders in respect of the instructions to be given to Mr F, should that be necessary.
That Mr F’s reasonable costs and outlays in discharging his task shall be paid, in the first instance, by the Respondents, jointly or severally, with the determination as to which party or parties shall bear the ultimate burden for such costs and outlays to be a matter for the Trial Judge.
That whilst Nyst Legal continues to represent the respondents in these proceedings, each time Nyst Legal is paid in respect of any of the accounts rendered to any of the Respondents, then the Respondents, jointly or severally, shall cause the exact same amount to be paid to Moloney MacCallum Lawyers, solicitors for the husband, such money to be held in trust by them for the husband and only applied to the payment of legal costs and outlays incurred by the husband in conducting his case in the proceedings in this Court.
That just how any payments made to the husband’s solicitors pursuant to paragraph (6) of these orders are treated in the determination…

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.

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Details

Case: [2017] FamCA 786
Decision Date: 4 October 2017

CaseChat Overview and Summary

In the proceedings before Forrest J, the applicants, Mullins & Ors, sought various orders concerning the conduct of the litigation. The dispute involved the valuation of interests in a company, B1, and the financial affairs of related entities. A key application concerned the removal of B3 Pty Ltd as the Fourth Respondent.

The court was required to determine whether B3 Pty Ltd should be removed as a party, whether E Pty Ltd should be joined as the Fifth Respondent, and the scope of forensic accounting instructions to be given to Mr F of G Accountants. Further issues included the payment of Mr F's costs and the mechanism for funding the husband's legal representation.

Forrest J dismissed the application to remove B3 Pty Ltd as the Fourth Respondent, thereby allowing it to remain a party. The court ordered that E Pty Ltd be joined as the Fifth Respondent. The instructions to Mr F were enlarged to include a forensic examination and evaluation of the records of the Second Applicant, the Fourth Respondent, and the Fifth Respondent from the 2013 financial year to June 2017, specifically to determine the value of the husband's and wife's interests in B1 as at 30 June 2017, including any amounts owing by the Fourth or Fifth Respondents to the Second Applicant. The court also made orders regarding the payment of Mr F's costs, to be borne in the first instance by the Respondents, with the ultimate allocation to be determined by the Trial Judge. Additionally, orders were made for the Respondents to pay an equivalent amount to the husband's solicitors for his legal costs each time they paid their own legal representatives.

Orders

Orders of the court

That the Application for the Fourth Respondent, B3 Pty Ltd, to be removed as a party to the proceedings, is dismissed.

That the company, E Pty Ltd ACN …, be joined as the Fifth Respondent to the proceedings.

That the instructions to Mr F of G Accountants be enlarged to include instructions to undertake a forensic examination and evaluation of the records of the Second Applicant and of the Fourth and Fifth Respondents from the 2013 financial year to the financial year ended June 2017 to determine, as far as is practicably possible, the value of the husband’s and the wife’s interests in B1 as at 30 June 2017, including having regard, in particular, to any amounts owing as at that date to the Second Applicant by either the Fourth or Fifth Respondents.

That each of the parties has liberty to apply to the Court for further orders in respect of the instructions to be given to Mr F, should that be necessary.

That Mr F’s reasonable costs and outlays in discharging his task shall be paid, in the first instance, by the Respondents, jointly or severally, with the determination as to which party or parties shall bear the ultimate burden for such costs and outlays to be a matter for the Trial Judge.

That whilst Nyst Legal continues to represent the respondents in these proceedings, each time Nyst Legal is paid in respect of any of the accounts rendered to any of the Respondents, then the Respondents, jointly or severally, shall cause the exact same amount to be paid to Moloney MacCallum Lawyers, solicitors for the husband, such money to be held in trust by them for the husband and only applied to the payment of legal costs and outlays incurred by the husband in conducting his case in the proceedings in this Court.

That just how any payments made to the husband’s solicitors pursuant to paragraph (6) of these orders are treated in the determination of final orders as to property settlement between the husband and the wife shall be a matter for the Trial Judge.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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