Romario & Aguera
[2019] FamCA 47
•8 February 2019
FAMILY COURT OF AUSTRALIA
| ROMARIO & AGUERA AND ANOR | [2019] FamCA 47 |
| FAMILY LAW – LEGAL PRACTITIONERS – SOLICITOR’S LIEN – Where application by wife’s former solicitor for a lien over certain funds that may be due and payable to the wife under any property orders – Where as a consequence of the solicitor’s engagement by the wife, the wife incurred costs due to the solicitors – Where appropriate to make orders sought – Where appropriate to grant liberty to wife to apply. |
| Firth v Centrelink & Anor [2002] NSWSC 564 Marsh v Marsh [2014] FamCA 361 |
| APPLICANT: | Ms Romario |
| RESPONDENT: | Mr Aguera |
| INTERVENOR: | B Lawyers |
| FILE NUMBER: | PAC | 2963 | of | 2016 |
| DATE DELIVERED: | 8 February 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 3 December 2018 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | No appearance |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No appearance |
| SOLICITOR FOR THE INTERVENOR: | B Lawyers |
Orders: Pending Further Order
That the wife be restrained from receiving any payment of money or transfer of property pursuant to any partial or final orders proposed under section 79 of the Family Law Act 1975 (Cth) except as these orders may otherwise provide.
That in the event of consent orders being sought by the parties, that the intervenor be heard prior to the Court’s determination of any application for consent orders.
That if the wife’s application for property is determined on the basis that it includes an order that the husband pay to the wife a sum greater than $10,201.00 by way of final property settlement or by way of costs the husband is to deposit the sum of $10,200.00 to the trust account of the intervenor instead of to the wife prior to any payment to the wife and pending the determination of the costs dispute, if any, as between the wife and the intervenors the intervenors hold those monies in trust on account for the wife or as the wife may otherwise direct in writing, that in the event that the husband or the wife or both of them file and serve a notice of discontinuance in relation to his, her or their applications before the Court the proceedings be relisted before the Court on a date convenient to all parties.
That the wife have liberty to apply on 14 days’ notice to the Court and the other parties.
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 Romario & Aguera and Anor 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 PARRAMATTA |
FILE NUMBER: PAC 2963 of 2016
| Ms Romario |
Applicant
And
| Mr Aguera |
Respondent
And
| B Lawyers |
Intervenor
REASONS FOR JUDGMENT
The current application for determination is a discrete application made in the context of ongoing property proceedings as between the applicant wife and respondent husband.
At present, there are outstanding issues as to whether this Court has jurisdiction to entertain the parties’ property proceedings as both parties and their children are habitually residents in Country C and it appears, although it is unclear, that there are presently property proceedings on foot in Country C that may or may not exercise jurisdiction over the parties’ Australian assets.
Proceedings were commenced by the applicant wife in June 2016 in the Federal Circuit Court of Australia, and in circumstances where there was a question as to jurisdiction, that court transferred proceedings to this Court in March 2017. Since that time, the parties have been seeking the appointment of an appropriately qualified single expert to provide evidence as to the relevant law in Country C that may touch upon this Court’s exercise of jurisdiction.
However, at this point, this Court has current property proceedings before it.
The present application arises by reason of an Application in a Case filed by the intervenor; B Lawyers, on 14 November 2018. That firm previously acted for the applicant wife.
In the Application a Case the intervenor seeks, in summary:
a)An order that the wife be restrained from receiving any payment of money or transfer of property pursuant to any partial or final orders proposed under section 79 of the Family Law Act 1975 (Cth) (“the Act”) except as these orders may otherwise provide.
b)That in the event of consent orders that the intervenor be heard prior to the Court’s determination of any application for consent orders.
c)That pending further order and in the event that the wife’s application for property is determined on the basis that it includes an order that the husband pay to the wife a sum greater than $10,201.00 by way of final property settlement or by way of costs, the husband is to deposit the sum of $10,200.00 to the trust account of the intervenor instead of to the wife within the time prescribed by the Court and pending the determination of the costs dispute, if any, as between the wife and the intervenors, the intervenors hold those monies in trust on account for the wife or as the wife may otherwise direct in writing.
d)That in the event that the husband or the wife or both of them file and serve a notice of discontinuance in relation to his, her or their applications before the Court the proceedings be relisted before the Court on a date convenient to all parties.
The application by the intervenor is supported by an affidavit by Paul Lewis filed 14 November 2018.
The Court is satisfied that the present application has been brought to the attention of the wife.
The wife provided instructions to the intervenor solicitors as and from 8 August 2018. Subsequently, significant work was undertaken by the intervenor and an invoice was forwarded to the wife by email on 24 August 2018 for the sum of $27,518.00.
Subsequently, the solicitors sought further instructions from the wife and on 10 October 2018 a Notice of Ceasing to Act was filed by the intervenors. Payment of $18,000.00 from funds held in trust on behalf of the wife was debited to outstanding costs with the balance then remaining outstanding being $10,200.00.
The solicitors assert an equitable lien in relation to the fruits of litigation that may arise to the wife in the context of the present property proceedings.
The nature of a solicitor’s lien for costs, whether taxed or untaxed or quantified or unquantified, has been the subject of well-settled principles of law. The basic principles that are applicable to the current matter are that:
a)Firstly, the solicitor’s right exists over money recovered through obtaining judgment in litigation and also over money recovered through the settlement of litigation.
b)Secondly, the solicitor’s right exists over both the amount of a judgment in favour of the client and the amount of an order for costs in favour of the client.
c)Thirdly, the solicitor’s right exists over money which is in the possession of the solicitor or also over money which is in Court and money which is owed to the client but not paid into Court.
d)Fourthly, the solicitor need not still be acting for the client at the time the money was recovered.
e)Fifthly, it must be shown that there is a sufficient causal link between the solicitor’s exertions and the recovery of the fund of money, and, as has been stated above, there is a direct causal link between the actions of the solicitor applicant in this application and the recovery of the settlement evidenced by consent orders by the wife.
f)Sixthly, in relation to those situations where it is necessary to ascertain the quantum owing to the solicitor, the solicitor’s right exists in the fund prior to the occurrence of the taxation.
g)Seventhly, the lien is over the proceeds of a settlement, and that lien arises when the settlement agreement is entered into. That is, in this case, the making of the orders on 27 May 2015.
These well-settled principles have been the subject of oft-quoted decisions, particularly Firth & Centrelink & Anor [2002] NSWSC 564, where Campbell J overviewed the development of the principles applicable to the present application. That decision has been directly applied in this Court in Marsh & Marsh [2014] FamCA 361 by Aldridge J.
Clearly, in the present case, the applicant’s solicitor is entitled to a lien, and in that regard, it is appropriate to make orders that give effect to the application by the solicitors.
The solicitor’s ultimate claim for costs in terms of quantum will need to be the subject of agreement as between solicitor and client or in default of agreement taxation.
The husband and wife remain presently the joint registered proprietors of two properties having significant value at Coogee and Maroubra in Sydney. No doubt those properties will be the subject of determination as to the parties’ property entitlements either in this Court or in Country C. Clearly a resolution of property will require either a sale of the subject properties or transfer of those properties as between the husband and wife.
In all of the circumstances and pending further order it is appropriate to make orders as sought by the intervenor solicitors with liberty being granted to the wife to apply in respect of same on not less than seven days’ notice to the Court and to the intervenor.
It is noted that the intervenors are at liberty should they elect to register the orders sought as against the title to the subject properties in Australia.
Orders will be made accordingly.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 February 2019.
Associate:
Date: 8 February 2019
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