NICKSON & KESSELL - [2020] FamCA 931

FAMILY COURT OF AUSTRALIA

NICKSON & KESSELL

[2020] FamCA 931

FAMILY LAW – LITIGATION FUNDING – Application for litigation funding for the applicant to pursue proceedings filed out of time – Where the application for funding falls under section 117 of the Family Law Act 1975 (Cth) – Where it is likely the applicant would be granted leave to file out of time – Where the applicant’s case is sufficiently arguable to justify a payment of $100,000 towards her litigation funding – Orders made for litigation funding – Orders made for specific disclosure – Orders made restraining the respondent from using funds in a specific bank account.

Family Law Act 1975 (Cth) s 117

Salvage & Fosse [2020] 61 Fam LR 45

APPLICANT:

Ms Nickson

RESPONDENT:

Mr Kessell

FILE NUMBER:

SYC

3399

2019

DATE DELIVERED:

5 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

2 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Millls Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie SC

SOLICITOR FOR THE RESPONDENT:

Holmes Donnelly & Co Solicitiors

Orders

IT IS ORDERED, UPON THE APPLICANT GIVING THE UNDERTAKING AS TO DAMAGES WHICH IS ANNEXURE “A”

That within seven days of the date of these Orders, the respondent provide to the applicant’s lawyers, the documents listed in Paragraphs 1(a) to (s) of the Amended Application in a Case filed 28 February 2020.
That, other than for the purpose of complying with Order 3, the respondent is restrained from dealing with the funds held in his name in the ANZ Bank account ending #…52 without first giving the applicant 28 days’ notice.
That within seven days the respondent pay to the applicant the sum of $100,000 by way of costs pursuant to s117(2) of the Family Law Act 1975 (Cth).

Annexure “A”

Undertaking Given By Ms Nickson

I undertake to the Court:

To abide by any Order the Court may make as to damages should the Court in future find that the Respondents, or either of them, has sustained any damage by reason of the Orders sought by me in my Amended Application in a Case filed 2 February 2020 for which I should accept responsibility.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3399 of 2019

Ms Nickson

Applicant

And

Mr Kessell

Respondent

REASONS FOR JUDGMENT

Ms Nickson (“the applicant”) and Mr…

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 NICKSON & KESSELL

Details

AGLC: NICKSON & KESSELL [2020] FamCA 931
Case: [2020] FamCA 931
Decision Date: 5 November 2020

CaseChat Overview and Summary

In *Nickson & Kessell*, heard by Rees J, the applicant sought litigation funding to pursue proceedings that had been filed out of time. The application for funding was made under section 117 of the *Family Law Act 1975* (Cth).

The central legal issues before the court were whether to grant leave to file the proceedings out of time, whether the applicant's case was sufficiently arguable to warrant an order for litigation funding, and whether to make orders for specific disclosure and to restrain the respondent from dealing with funds in a particular bank account.

Rees J reasoned that it was likely the applicant would be granted leave to file out of time and that her case was sufficiently arguable to justify an order for litigation funding. Consequently, the court ordered the respondent to pay the applicant $100,000 towards her litigation funding, pursuant to s 117(2) of the *Family Law Act 1975* (Cth). The court also made orders for specific disclosure, requiring the respondent to provide a list of documents to the applicant's lawyers within seven days. Additionally, the respondent was restrained from dealing with funds in a specified ANZ bank account without first giving the applicant 28 days' notice, other than for the purpose of complying with the disclosure order. These orders were made upon the applicant giving an undertaking as to damages.

Orders

Orders of the court

IT IS ORDERED, UPON THE APPLICANT GIVING THE UNDERTAKING AS TO DAMAGES WHICH IS ANNEXURE “A”

That within seven days of the date of these Orders, the respondent provide to the applicant’s lawyers, the documents listed in Paragraphs 1(a) to (s) of the Amended Application in a Case filed 28 February 2020.

That, other than for the purpose of complying with Order 3, the respondent is restrained from dealing with the funds held in his name in the ANZ Bank account ending #…52 without first giving the applicant 28 days’ notice.

That within seven days the respondent pay to the applicant the sum of $100,000 by way of costs pursuant to s117(2) of the Family Law Act 1975 (Cth).

Annexure “A”

Undertaking Given By Ms Nickson

I undertake to the Court:

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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