Paladini and Paladini and Anor

[2014] FamCA 203

FAMILY COURT OF AUSTRALIA

PALADINI & PALADINI AND ANOR [2014] FamCA 203

FAMILY LAW – PROPERTY – Interim – Where a property settlement has not been achieved –Where the husband owes fees to his previous solicitors in respect of third party proceedings – Where a notice of intervention was filed by the husband’s previous solicitors – Orders made for the solicitor for the intervener to file and serve all documents on which they seek to rely – Orders made for the parties to notify each other as to their position with respect to the release of funds to the husband’s previous solicitors – trial directions made for a property settlement hearing

APPLICANT: Ms Paladini

RESPONDENT: Mr Paladini

INTERVENER: B Trust T/As C Law Firm

FILE NUMBER: SYC 1179 of 2009

DATE DELIVERED: 19 March 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 19 March 2014

REPRESENTATION

APPLICANT: In Person

RESPONDENT: In Person (by phone)

SOLICITOR FOR INTERVENER: Mr O’Brien

Orders

1. The solicitor for the interveners file and serve within seven days from today’s date all documents on which the interveners seek to rely.

2. Not later than 28 April 2014 each of the husband and the wife notify the solicitors for the interveners, each other and the associate to Justice Loughnan (…) by post or by email:

   2.1What their attitude is to the release from the funds held in the trust account of C Law Firm of $83,298.49 in respect of the fees said to be owing to that firm in relation to the third party proceedings involving the husband in Queensland.

   2.2If they do not agree to those funds being released, whether they agree to some different amount being released to those solicitors.

   2.3Whether they agree to the balance of the funds after any disbursement from the funds held on trust by those solicitors being paid out into a joint account in the names of the husband and the wife with both parties to sign, to abide further orders of this court in relation to property settlement.

3. Leave is granted to the solicitors for the interveners to restore the proceedings to the list after that timetable to seek either orders in terms agreed between the parties, or arrangements for the listing of the controversy in relation to their claim for hearing.

4. Not later than 2 May 2014 the husband and the wife file and serve all affidavit evidence on which they seek to rely in relation to the property settlement proceedings including one affidavit from each lay witness including themselves, an affidavit from any treating medical practitioner in relation to a medical condition said to be relevant to the property settlement proceedings.

5. Not later than 2 May 2014 the husband and the wife are each to file and serve an updated financial statement and it is noted that the financial statement require each party to set out the financial arrangements associated with the cohabitation of the parties with any other person including but not limited to what funds are expended by the husband and the wife for the benefit of others and what benefit the husband or the wife receive from the expenditure of others and where practicable, the income of each person cohabitating with the husband or the wife.

6. The court notes that pursuant to previous directions evidence has been filed from separate experts in relation to the value of a commercial property in Italy.

7. The court notes that the parties are obliged to provide current evidence of the value of an asset in respect of which there is a dispute about value. 

8. The court notes that it may be that the parties are able to agree on the value of the Italian property whether in terms of valuation evidence already filed or at some other figure.

9. The proceedings be listed at 9.30 am on 8 May 2014 for further directions in relation to the substantive proceedings.

10. Leave is granted to any of the parties to attend by telephone on 8 May 2014 should they wish.

11. The court notes that the purpose of 8 May 2014 will be to ascertain whether the directions have been complied with and if so or in any event whether the proceedings are able to be fixed for final trial.

12. Leave is granted to any of the parties to restore the proceedings to the list on giving 48 hours’ notice to the court and to each other.

13. The court notes that on 8 May 2014 consideration will be given to dismissing all interlocutory applications in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paladini & Paladini and Anor 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 1179 of 2009

Ms Paladini

Applicant

And

Mr Paladini

Respondent

And

B Trust T/As C Law Firm

Intervener

EXTEMPORE JUDGMENT

1. These are proceedings for a property settlement that have been on foot for some years.  I understand that the proceedings might have commenced in 2009 in the Federal Circuit Court, as it is now known.  The matter was subsequently transferred to this Court on the basis that it was thought that the trial might take more than five days.

2. The matter came before me earlier in the year on the application of the husband seeking to review some orders made by a Registrar about listing the matter for hearing.  It transpires that it was not practicable for the applicant wife to attend as she was out of the country and so I put the matter over to the Registrar to speak to the parties and to fix a date before me when it was known what the matter was about.  That is today.

3. The husband and wife appeared without legal representation, the husband by telephone.  As he had done on a previous occasion, the husband proved very difficult to control.  Because of the voice-activated nature of conference calls, I was not able to stop him talking at some length, unresponsively and over the top of me.  Ultimately I had his connection to the proceedings cut off, after warning him that that would be the case, and indicating to him that he would be notified in writing of the outcome.  It is because of that indication that I have settled the reasons given on the day.

4. The proceedings are property settlement proceedings between husband and wife.  They had a very short marriage.  The proceedings relate to a very modest pool of assets but include issues such as real estate overseas, claims for damages because of the conduct of each other, problems of disclosure and valuation.  Neither the husband or wife has legal representation, although the wife is a legal professional.  The issue that probably lead to the transfer of the proceedings was the husband’s claim in third party proceedings for some millions of dollars.  Those proceedings have been compromised for $163,000.  It is likely that there will be something like $90,000 left out of those funds once legal fees have been paid.  The solicitors who acted for the husband in those proceedings claim that they are owed about $83,000.  Unfortunately, the documents evidencing their claim are quite voluminous and have yet to reach both parties. 

5. The parties need an opportunity to consider the material from the interveners.  The solicitors filed a Notice of Intervention by leave today.  Hopefully, there will be no controversy in relation to their fees.  The husband did not tell me that he disputed the solicitor’s claims, and indeed I understand that he wants permission to pay the solicitors out of the settlement funds held by those same solicitors.

6. It is a matter that, on the face of it, would normally be transferred back to the Federal Circuit Court because, on the evidence, the net pool of assets might be only $150,000.  However, the matter has already been transferred and I am inclined to retain the proceedings in this court.  It is not going to be easy to ready the matter for hearing.  I asked the husband when he could prepare his evidence and in a five or six minute diatribe I think he said he could never do it.  It might be said he has partly done it, so I am not sure about that. 

7. The husband lives in Queensland.  He said, among other things, something like he could not even afford the postage to send the documents to Court.  That does not augur well for a hearing where he would be required to travel to this Court in Sydney.  But in any event directions are needed to prepare the matter for a final hearing.  I have indicated to the parties what I propose to order.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 19 March 2014.

Associate: 

Date:  31 March 2013