Percell and Mulroy (No 2)

[2017] FamCA 881

FAMILY COURT OF AUSTRALIA

PERCELL & MULROY (NO. 2) [2017] FamCA 881

FAMILY LAW – PRACTICE AND PROCEDURE – Where the respondent’s solicitors request to intervene in proceedings – Where the respondent previously entered into a Deed with her solicitors in relation to funds subject to a costs order – Where the solicitors have an interest in the costs proceedings – Where leave is given for the respondent’s solicitors to intervene in these proceedings.

APPLICANT: Mr Percell

RESPONDENT: Ms Mulroy

INTERVENOR: Central Coast Family Law

FILE NUMBER: SYC 1379 of 2013

DATE DELIVERED: 22 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 22 August 2017

REPRESENTATION

FOR THE APPLICANT: Mr Percell in Person

FOR THE RESPONDENT: Ms Mulroy in Person

COUNSEL FOR THE INTERVENOR: Mr Othen

SOLICITOR FOR THE INTERVENOR: Central Coast Family Law

Orders

1. That Malcolm Bruce Cameron trading as Central Coast Family Law have leave to intervene in these proceedings.

2. That the intervenor file and serve within 14 days all material filed by him in the costs assessment proceedings annexed to an affidavit.

3. That Mr Percell and Ms Mulroy each file and serve all affidavits in response to that material not later than 6 October 2017.

4. The costs assessment hearing be listed for hearing on 18 October 2017 at 10.00 am.

5. The Court notes that Ms Mulroy will file and serve a Notice of address for Service as soon as possible.

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 Percell & Mulroy (No 2) 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 1379 of 2013

Mr Percell

Applicant

And

Ms Mulroy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 22 December 2015 Ms Mulroy entered into a Deed with her then solicitors, Central Coast Family Law.  This was in the course of resolving her substantive family law de facto relationship property proceedings with her former de facto partner, Mr Percell.  As part of the substantive proceedings Mr Percell had agreed to the making of a costs order, which was on 14 April 2015, that he pay the costs of Ms Mulroy as agreed or assessed on a party/party basis and those monies were to be paid to her solicitors.

2. Returning to the Deed, under clause 1(c) of the operative clauses of the agreement, Ms Mulroy agreed that should any further payment be received by Central Coast Family Law from Mr Percell pursuant to the costs order made on 14 April 2015 this will be disbursed in the following manner:

   a)One third to a named barrister

   b)Two thirds to her solicitors in payment of their fees

   c)And there was what amounts to a notation in respect of some monies which apparently were also owing by Ms Mulroy to another barrister. That matter does not need to trouble me at the present time.

3. The costs were assessed and a costs assessment order was made on 2 March 2017.

4. Mr Percell filed an Application in a Case seeking an order to set aside the costs assessment order.  That bears a court imprint at the bottom of the document which says it was filed or sealed on 15 June 2017.  I understand that it was filed a long time earlier.  It is in respect of those proceedings that Ms Mulroy’s former solicitors, Central Coast Family Law, are seeking leave to intervene in circumstances where Ms Mulroy has under that operative clause 1(c) agreed to payment of any monies received by her former solicitors by Mr Percell pursuant to the costs order in the manner indicated above. 

5. In effect, where it is said that Ms Mulroy has given away her rights to her solicitors in respect of receiving those monies, clearly the solicitors have an interest in those costs proceedings.  Any rights they might have to receive monies could be affected by whatever order the Court makes in respect of those proceedings.

6. In those circumstances, in my view, the solicitors have a proper interest in those proceedings and the appropriate course is to give the solicitors leave to intervene in those proceedings.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 22 August 2017.

Associate:     

Date:  7 November 2017