RAMETTA AND ORS & RAMETTA - [2020] FamCA 377

FAMILY COURT OF AUSTRALIA

RAMETTA AND ORS & RAMETTA

[2020] FamCA 377

FAMILY LAW – INJUNCTIONS – where husband seeks a release of funds to which he is entitled pending determination of wife’s s 79A application – relevant considerations – injunction dissolved and funds paid to husband

FAMILY LAW – COSTS – where wife seeks $200,000 to fund her s 79A litigation which was brought 13 years after orders were made by consent– where court’s power is confined to costs power in s 117 – relevant considerations – where there is a vast disparity in financial positions of the husband and the wife – where costs may be disproportionate to proceedings.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126

1st APPLICANT:

Mr Rametta

2nd APPLICANT:

B Pty Ltd

3rd APPLICANT:

C Pty Ltd

RESPONDENT:

Ms Rametta

FILE NUMBER:

MLC

9433

2017

DATE DELIVERED:

19 May 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

16 April 2020

REPRESENTATION

COUNSEL FOR THE 1^ST, 2^ND AND 3^RD APPLICANT:

Mr Puckey with Mr Schmidt

SOLICITOR FOR THE 1^ST, 2^ND AND 3^RD APPLICANT:

Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

Within 7 days, the wife's solicitors disburse from the funds held by them in a controlled monies account with the National Australia Bank in the name of Kennedy Partners Lawyers PL CMA ATF Ms Rametta pursuant to paragraph 2(e)(i) of the Order made on 6 September 2018, to the extent that there are sufficient funds available in that account and in the following order of priority:
(a)$688,486.00 to Slater and Gordon on account of outstanding fees and disbursements owed to the firm by the Rametta Parties;
(b)$210,196.93 to Slater and Gordon on account of unbilled work in progress and disbursements incurred by Mr Rametta in respect of this proceeding;
(c)$325,565.30 to Slater and Gordon on account of unbilled work in progress and disbursements incurred by the Rametta Parties in respect of the 'inactive matters";
(d)$102,213.07 to Slater and Gordon on account of unbilled work in progress and disbursements incurred by the Rametta Parties in respect of the 'active matters";
(e)$279,950 to the Slater and Gordon Law Practice Trust Account on behalf of the husband;
(f)$514,950 to the Slater and Gordon Law Practice Trust Account on behalf of the Rametta Parties and
(g)$290,828.21 to the husband.
Any party wishing to make an application for the other party to pay his or her costs of in relation to the applications disposed of by this Order be at liberty to make that application by including in his or her affidavit of evidence in chief or the next affidavit which he or she is going to make and file in this proceeding, the following:
(a)the amount of costs sought;
(b)any evidence in support of the application for costs;
(c)without prejudice to the basis…

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 RAMETTA AND ORS & RAMETTA

Details

AGLC: RAMETTA AND ORS & RAMETTA [2020] FamCA 377
Case: [2020] FamCA 377
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the matter of *Rametta and Ors & Rametta*, Bennett J considered applications by both the husband and wife concerning the release of funds and costs. The husband sought the release of funds to which he was entitled, pending the determination of the wife's application under s 79A of the *Family Law Act 1975* (Cth). The wife, in turn, sought a significant sum to fund her s 79A litigation, which was brought 13 years after consent orders were made.

The court was required to determine the relevant considerations for releasing funds to a party pending further proceedings and the appropriate approach to costs applications, particularly when one party sought substantial funding for litigation commenced many years after final orders. The court's power to award costs was confined to s 117 of the *Family Law Act 1975* (Cth), and it had to consider the vast disparity in the financial positions of the parties and whether any costs awarded might be disproportionate to the proceedings themselves.

Bennett J reasoned that the husband was entitled to the release of funds, dissolving an injunction that had previously prevented their disbursement. In relation to costs, the court acknowledged the wife's request for funding but also noted the significant delay in her s 79A application. The court outlined a detailed procedure for any future applications concerning costs, requiring parties to specify the amount sought, provide supporting evidence, and annex a memorandum of costs drawn in accordance with the Scale of Costs in Schedule 3 to the *Family Law Rules 2004*.

The court ordered the disbursement of funds from a controlled monies account in a specific priority, with a substantial portion allocated to legal fees and the remainder to the husband and the wife. The husband's application in a case filed on 1 April 2020 was otherwise dismissed, as was the wife's response to an application in a case filed on 14 April 2020. Liberty was granted to any party wishing to make an application for costs to do so in accordance with the specified procedural requirements.

Orders

Orders of the court

Within 7 days, the wife's solicitors disburse from the funds held by them in a controlled monies account with the National Australia Bank in the name of Kennedy Partners Lawyers PL CMA ATF Ms Rametta pursuant to paragraph 2(e)(i) of the Order made on 6 September 2018, to the extent that there are sufficient funds available in that account and in the following order of priority:

(a) $688,486.00 to Slater and Gordon on account of outstanding fees and disbursements owed to the firm by the Rametta Parties;

(b) $210,196.93 to Slater and Gordon on account of unbilled work in progress and disbursements incurred by Mr Rametta in respect of this proceeding;

(c) $325,565.30 to Slater and Gordon on account of unbilled work in progress and disbursements incurred by the Rametta Parties in respect of the 'inactive matters";

(d) $102,213.07 to Slater and Gordon on account of unbilled work in progress and disbursements incurred by the Rametta Parties in respect of the 'active matters";

(e) $279,950 to the Slater and Gordon Law Practice Trust Account on behalf of the husband;

(f) $514,950 to the Slater and Gordon Law Practice Trust Account on behalf of the Rametta Parties and

(g) $290,828.21 to the husband.

Any party wishing to make an application for the other party to pay his or her costs of in relation to the applications disposed of by this Order be at liberty to make that application by including in his or her affidavit of evidence in chief or the next affidavit which he or she is going to make and file in this proceeding, the following:

(a) the amount of costs sought;

(b) any evidence in support of the application for costs;

(c) without prejudice to the basis upon which the applicant for costs seeks costs be calculated, an annexure which is a memorandum of costs sought which is drawn in accordance with the Scale of Costs in Schedule 3 to the Family Law Rules 2004.

Any party opposing an order for costs or making a cross application for costs include in his or her affidavit of evidence in chief or next affidavit which he or she is going to make and file in this proceeding, the following:

(a) Any concession by him or her to payment of the other party’s costs and/or the amount of costs sought by way of cross application;

(b) any evidence in support of the orders sought as to costs;

(c) without prejudice to the basis upon which the cross-applicant for costs seeks costs be calculated, an annexure which is a memorandum of costs sought which is drawn in accordance with the Scale of Costs in Schedule 3 to the Family Law Rules 2004.

The husband’s Application in a Case filed 1 April 2020 be otherwise dismissed.

The wife’s Response to an Application in a Case filed 14 April 2020 be and is hereby dismissed.

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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