Strahan and Strahan & Ors - [2020] FamCA 27

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN AND ORS

[2020] FamCA 27

FAMILY LAW – PRACTICE AND PROCEDURE – Method of payment of judgment sum – machinery provision – solicitors’ claimed “fruits of litigation liens” – order for payment into court of judgment sum.

Family Law Act 1975 (Cth), ss.79, 79(10), 79(10)(a), 117(1), 117B(1), 117B(2)
Legal Practitioners Act 1981 (SA), sch.3, 37(4)
Family Law Rules 2004 (Cth), r 5.01, 6.06, 6.06(1), 6.06(2), 15.08(2), 20.07

Ravasini & Ravasini (1983) FLC 91-312
Molier & Van Wyk (1980) FLC 90-911
Carew Counsel Pty Ltd v French [2002] VSCA 1
Firth v Centrelink & Anor [2002] NSWSC 564
Griffiths v Evans [1953] 2 All E R 1364
Harvey & Phillips (1956) 95 CLR 235
Ex parte Patience; Makinson v The Minister (1940) 40SR (NSW) 96

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FIRST INTERVENOR:

PP Lawyers Pty Ltd and

Ms PP

SECOND INTERVENOR:

NF Pty Ltd

THIRD INTERVENOR:

NS Company Pty Ltd

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

24 January 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Cairns – 17 December 2018, 5 March 2019 & 30 April 2019;

Adelaide – 22 July 2019

JUDGMENT OF:

Mead J

HEARING DATE:

Tree J – 17 December 2018, 5 March 2019 & 30 April 2019;
Mead J – 22 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams QC

SOLICITOR FOR THE APPLICANT:

McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kennedy

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

COUNSEL FOR THE FIRST INTERVENOR:

Mr Stratton-Smith of Counsel

SOLICITOR FOR THE FIRST INTERVENOR:

Mr PP, Solicitor

COUNSEL FOR THE SECOND INTERVENOR:

Mr NF

SOLICITOR FOR THE SECOND INTERVENOR:

NF Pty Ltd Lawyers

COUNSEL FOR THE THIRD INTERVENOR:

No appearance

SOLICITOR FOR THE THIRD INTERVENOR:

NS Company

*Pursuant to Regulation 17.02(1)(e) of the Family Law Rules 2004 this order is amended on 29 January 2020.

Orders

That to the extent that it is necessary PP Lawyers Pty Ltd and Ms PP (hereinafter referred to as “PP Lawyers”) be granted leave to intervene in these proceedings as the First Intervenor.
That to the extent that it is necessary NF Pty Ltd (hereinafter referred to as “NF Pty Ltd”) be granted leave to intervene in these proceedings as the Second Intervenor.
That within seven (7) days of the date of this order the husband do pay or cause to be paid on his behalf the sum of $2,000,000.00 to the Registry Manager of the Adelaide Registry of the Family Court of Australia to be held in the Family Court of Australia Litigants Fund account on behalf of the wife with such payment to be in full and final satisfaction of the husband’s obligation to the wife pursuant to the terms of paragraph 2(a) *and 2(b) of the order of the Honourable Justice Cronin made herein on 23 November 2017.
That the wife’s Application in a Case filed herein on 15 October 2018 be otherwise dismissed with no order as to costs.
That the husband’s Response to the said Application in a Case filed herein on 29 October 2018 be otherwise dismissed with no order as to costs.
That the Application in a Case filed herein by NS Company Pty Ltd on 21 November 2018 be dismissed.
That directions generally arising from the intervention of PP Lawyers and NF Pty Ltd in these proceedings be listed on 27 February 2020 at 9:30am South Australia time (9:00am Queensland time).

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 Strahan & Strahan 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 ADELAIDE

FILE NUMBER: ADF 228 of 2005

Ms Strahan

Applicant

And

Mr Strahan

Respondent

And

PP Lawyers Pty Ltd and Ms PP

First Intervenor

And

NF Pty Ltd

Second Intervenor

And

NS Company Pty Ltd

Third Intervenor

REASONS FOR JUDGMENT

Introduction

Litigation commenced between the husband and the wife in this matter in 2005. On 23 November 2017 final orders were made by the Honourable Justice Cronin in determining issues of property settlement as between the parties.
By that time, both of the parties had spent millions of dollars on legal fees. The proceedings still continue. They had originally involved parenting issues as well as property settlement. The parties’ child S attained the age of 18 years in June 2014.
The extensive litigation not only involved hearings in the Family Court of Australia at first instance but appeals to the Full Court of the Family Court.
In addition, the wife had been engaged in litigation in various state courts with respect to disputes concerning legal fees charged by various of her solicitors from time to time.
On 23 November 2017 Justice Cronin made the following orders finalising issues of property settlement as between the parties:
1.That the husband have leave to proceed in the absence of the wife.
2.By 4.00pm on 31 January 2018 (or at such other time as the parties may agree in writing), the husband:
a)Pay to the wife $1.7 million; and
b)Authorise his solicitors to release to the wife, the sum of $300,000 held on trust pursuant to the orders of this court.
3.Within 7 days of being presented with the necessary documents to give effect to this order, the wife do all such acts and things and sign any necessary document to:
a)Resign any office she holds in the following companies:
i.KB Pty Ltd;
ii.TS Pty Ltd; and
iii.WS Nominees Pty Ltd
(“the companies”)
b)Relinquish or resign as an appointor of the S Trust;
c)Transfer to the husband or his nominee any shares held by her in the companies;
d)Assign to the husband any monies standing to her credit in the accounts of the companies and/or the Strahan Trust and the S Trust (“the trusts”) and relinquish any right or entitlement which she may have under the deeds of settlement of the trusts;
e)Withdraw, at her expense, any and all caveats lodged by her against the titles of the real properties to be retained by the husband in Australia, Hong Kong, Switzerland or southern Europe; and
f)Deliver to the husband the keys to the apartment in Switzerland.
4.Should the wife fail to comply with the terms of paragraph (3) of these orders, pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar of the Family Court of Australia at Adelaide is appointed to sign all such documents in the name of the wife as may be required to give effect to these orders and the registrar shall be satisfied of the default of the wife upon production of an affidavit by the solicitor for the husband confirming such default.
5.By 4.00pm on 31 January 2018, the husband either in his personal capacity or as a director of the trustee of the Strahan Trust, do all such acts and things and sign all such documents as may be necessary to provide to the wife a transfer of land in registerable form to effect the transfer of the following properties to the wife:
a)SW Street, Suburb NB;
b)HC Street, Suburb NB;
c)SE Street, Suburb PS;
d)HS Street, Suburb AN; and
e)RC Street, Suburb YK.
6.Upon the provision by the husband of the documents required of him in paragraph (5) of these orders, the order for interim spousal maintenance made on 24 April 2012 is discharged subject to any arrears that may be outstanding thereunder.
7.If by 4.00pm on 15 December 2017, the wife has failed to notify the husband of the entity into which she wishes the balance of her interest in SH Pty Ltd to be transferred, the husband be at liberty to arrange such transfer to 1:11AM Limited.
8.Upon compliance by the husband with all obligations under these orders, all extant orders made by this court are otherwise discharged.
9.Save as otherwise provided by these orders, each party shall retain and the other relinquish any interest in, any assets in the name of the other party (or in which they have any legal or equitable interest) as at this date, including any interest as an employee pursuant to any superannuation fund.
10.Any joint tenancy of the parties in any real or personal estate is severed by these orders.
11.That the wife’s application as amended filed 9 June 2005 and the amended response to the application for final orders filed by the husband on 1 March 2017 are otherwise dismissed.
On 11 December 2017 the wife filed Notices of Appeal with respect to the refusal of Cronin J to adjourn the final property settlement hearing and against the final orders made by him on 23 November 2017.
On 31 January 2018 the wife filed an Application in a Case seeking a stay of the final orders for settlement of property. That application was opposed by the husband and refused by Cronin J on 22 February 2018.
On 6 March 2018 the wife filed an application for adult child maintenance with respect to the parties’ child S. That application was subsequently the subject of a Notice of Discontinuance filed by the wife on 31 October 2018.

Background to current issues

On 15 October 2018 the wife filed an Application in a Case seeking the following orders:
1.The Respondent pay the amount of $2,000,000 plus interest of $99,452 directly to the wife by Electronic Funds Transfer, to be paid within 14 days of the date of this order.
2.The Respondent file and serve a financial statement pursuant to Rule 20.07 of the Family Law Rules 2004.
3.The Respondent pay the Applicant’s costs of the Application.
On 29 October 2018 the husband filed a Response to that Application in a Case seeking the following orders:
1.The Application in a Case filed by the wife on 15 October 2018 be dismissed.
2.The wife pay the husband’s costs of and incidental to this application.
3.Such further or other orders as this Honourable Court deems appropriate.
The application and response were made returnable before a Registrar of the Family Court of Australia on 30 October 2018.
On 30 October 2018 a Notice of Intervention by Person Entitled to Intervene was filed, pursuant to rule 6.06 of the Family Law Rules 2004, by Ms PP and PP Lawyers Pty Ltd (hereinafter referred to as “PP Lawyers”), one of the wife’s previous solicitors.
An affidavit of Ms PP was filed on that same day with the notice as required by rule 6.06(2) but was subsequently uplifted by order of the Registrar on 23 November 2018 noting annexures to the affidavit and rule 15.08(2) of the Family Law Rules.
The affidavit had been refiled on 21 November 2018 without the offending annexures.
The schedule of orders sought by PP Lawyers was contained in [31] of the affidavit as follows:
1.That this application for intervention be listed on 30 October 2018 at 2:30 pm, contemporaneously with the Applicant’s Application in a Case filed 15 October 2018;
2.That paragraphs 1, 2 and 3 of the Applicant’s Application in a Case filed 15 October 2018 be dismissed;
3.That the cheque for $2 million drawn in the Applicant’s name and currently held by NS Company Lawyers be forwarded by them to the Registry Manager of the Adelaide Registry of the Family Court of Australia to be held by the Adelaide Registry to be invested pending further order;
4.That the Applicant do all things necessary to give full force and effect to paragraph 3 of these orders;
5.That the costs of and incidental to this application be paid by the Applicant;
6.Liberty to apply;
7.Such other or further orders as this Honourable Court deems fit.
In [5] of her affidavit she deposed to being entitled to intervene in the proceedings being a creditor of the wife for legal fees and disbursements incurred in the wife’s family law matters and,
“…holding a lien over the fruits of the Applicant’s litigation. As such, PP Lawyers’ interests would be affected by an order under section 79 of the Family Law Act 1975, as sought the Applicant.”
By filing the Notice of Intervention by Person Entitled to Intervene PP Lawyers were relying on the provisions of rule 6.06(1) of the Family Law Rules. That rule is in the following terms:
“This rule applies if the Attorney‑General, or any other person who is entitled under the Act to do so without the court’s permission, intervenes in a case.”
On 30 October 2018 NF Pty Ltd (hereinafter referred to as “NF Pty Ltd”) filed an Application in a Case pursuant to rule 5.01 of the Family Law Rules 2004.
That rule entitles a party to a case to apply for an interim, procedural or ancillary or other incidental order in relation to a cause of action only if that party has made an application for final orders in that cause of action and final orders have not been made.
The orders sought by NF Pty Ltd were as follows:
1.That NF Pty Ltd lawyers be added as a party to these proceedings.
2.Within seven days of the date of this order Kennedy & Partners or Mr Strahan, as appropriate, shall:
2.1cause the cheque provided to NS Company Law Firm on behalf of the wife on 31 January 2018 to be cancelled; AND
2.2cause the sum of $87,966.64 plus costs in accordance with NF Pty Ltd’s Terms of Engagement and interest to be calculated in accordance with the Legal Practitioner’s Act 1981 (SA) to be paid to NF Pty Ltd’s nominated account.
OR IN THE ALTERNATIVE
3.That within seven days of the date of this order NS Company shall bank into their Solicitors Trust Account the cheque in the sum of $2 million provided to them on behalf of the Wife on 31 January 2018 and forthwith upon the funds clearing pay the amount of $87,966.64 plus costs in accordance with NF Pty Ltd’s Terms of Engagement and interest to be calculated in accordance with the Legal Practitioner’s Act 1981 (SA) to NF Pty Ltd’s nominated account.
4.Such further or other Orders as this Honourable Court deems fit.
That Application in a Case was supported by an affidavit of Mr NG wherein he deposed to NF Pty Ltd having entered into a Costs Agreement with the wife on 8 April 2016 after being instructed to act on her behalf in the Family Court proceedings.
He deposed to receiving from the wife notice of termination of NF Pty Ltd’ services by way of email on 7 September 2016. Mr NG deposed to issuing final accounts to the wife for professional services rendered to her on 23 September 2016 in the sum on $107,635.84 plus interest.
In addition to orders made by Registrar Paxton on 30 October 2018 with respect to compliance with orders of Justice Tree of 13 September 2018 which are not germane to the current outstanding issues, the Registrar made the following orders at [3] to [5]:
3.In relation to the Application in a Case filed by the wife on 15 October 2018 (folio 753) and the Response to an Application in a Case filed by the husband on 29 October 2018 (folio 757) a listing for argument before Justice Tree is sought by the parties NOTING the attendances by or on behalf of proposed interveners today in relation thereto as follows:
a)Mr Cox of Counsel for PP Lawyers;
b)Mr NF for NF Pty Ltd;
c)Mr PT for NS Company;
d)Mr Cogan for CW Lawyers
seeking to intervene in relation to the said Application in a Case and the Response to an Application in a Case and that the wife will formally confirm in writing if she objects to the proposed interventions by 4.00pm on 9 November 2018 and if there is no objection will provide the proposed interveners with copies of the documents filed in relation to the said Application forthwith.
4.Thereafter any application to intervene pursuant to Rule 6.05 of the Family Law Rules an [sic] Notice of Intervention by a Person Entitled to Intervene, if so advised pursuant to Rule 6.06 of the Family Law Rules be filed and served within seven (7) days and any response within a further period of seven (7) days.
5.That the proceedings be adjourned for mention/interim argument before Justice Tree on 17 December 2018 at 2.15pm QLD time (2.45pm Adelaide time) NOTING that the estimated hearing of the interim argument is half a day to one day.
The husband and the wife were both legally represented at that hearing.
In addition legal representatives appeared for what were described in the order of that day as “the interested persons/proposed intervenors”.
On 16 November 2018 being some seven days after the time provided for by the Registrar for the wife to object to proposed interventions and apparently in the absence of any such objection, NF Pty Ltd filed a Notice of Intervention by Person Entitled to Intervene pursuant to rule 6.06 of the Family Law Rules.
That Notice was accompanied by an affidavit of Mr NG, one of three Directors of NF Pty Ltd.
The schedule of orders sought were set out in [25], [26] and [27] of the affidavit filed pursuant to rule 6.06(2).
The affidavit filed by Mr NG in support of the Notice of Intervention by Person Entitled to Intervene and pursuant to rule 6.06(2) of the Family Law Rules was in many respects in the same terms as his affidavit filed on 30 October 2018 in support of the Application in a Case filed on that day.
Paragraph 3 of the affidavit however was in the following terms, namely:
“NF Pty Ltd is a person entitled to intervene pursuant to Rule 6.06 of the Family Law Rules 2004 as a creditor of the Applicant Wife, Mrs Strahan (hereinafter referred to as “the Wife”) for legal fees and disbursements incurred whilst acting on behalf of the Wife in Family Law matters and pursuant to NF Pty Ltd’ lien over the fruits of the Wife’s litigation. NF Pty Ltd’ interests would be affected by an order as sought by the Wife under section 79 of the Family Law Act 1975.”
This paragraph was almost identical in wording to [5] of the affidavit of Ms PP originally filed on 30 October 2018 and refiled on 21 November 2018.
On 21 November 2018 an Application in a Case was filed pursuant to rule 5.01 of the Family Law Rules 2004 by NS Company Pty Ltd (hereinafter referred to as “NS Company”). The orders sought therein were as follows:
1.That NS Company intervene in these proceedings pursuant to Rule 6.06 of the Family Law Rules 2004.
2.In the alternative, that NS Company be granted leave to intervene in these proceedings pursuant to Rule 6.05 of the Family Law Rules 2004.
3.That the applicant wife pay NS Company’s costs of and incidental to this application.
4.Any further or such other order as this Honourable Court deems fit.
In the absence of any evidence to the contrary it would appear that the wife had not confirmed in writing that she objected to the proposed interventions by 4:00pm on 9 November 2018. The abovementioned application to intervene was filed by NS Company some five days outside of the time provide for in the order of Registrar Paxton of 30 October 2018.
Registrar Paxton listed the wife’s Application in a Case, the husband’s Response, the Notice of Intervention by Person Entitled to Intervene filed by PP Lawyers, the Application in a Case filed by NF Pty Ltd, the Notice of Intervention by Person Entitled to Intervene filed by NF Pty Ltd and arguably the Application in a Case filed by NS Company before Justice Tree on 17 December 2018 for mention/interim argument noting the estimated hearing time for interim argument was half a day to one day.
Justice Tree made procedural orders on 17 December 2018 in relation to the filing of submissions by the wife with respect to her Application in a Case, by the husband with respect to his Response, and by any intervenor who wanted to be heard in relation to the wife’s Application in a Case or the husband’s Response.

He further ordered that subsequent to that process, the wife’s former solicitors who claimed liens over judgment proceeds pursuant to the orders of Cronin J of 23 November 2017 were to file and serve any material including written submissions in support of their claim, with the wife to file any further material including written submissions in relation to any opposition she may have to the asserted liens, and that the wife’s former solicitors file any further material including submissions in Reply to the material and submissions of the wife.
His Honour then ordered that judgment in relation to all applications with respect to all extant matters to which I have referred be reserved after the filing of the material as ordered.
On 5 March 2019 the matter came back before Tree J who made further procedural orders with respect to the wife being able to rely upon her affidavit filed 20 February 2019, the filing of further affidavits by PP Lawyers and NF Pty Ltd in response to that affidavit and any further written submissions limited to the issues raised by the wife’s affidavit.
The wife was ordered to file any further written submissions strictly in reply to any of the submissions of PP Lawyers and NF Pty Ltd and any application to put on further affidavit material in response to that material by no later than 4:00pm on 29 April 2019.
His Honour further ordered that otherwise all parties and intervenors be restrained from making, filing and serving any further material relating to any claim advanced by a former solicitor of the wife for a lien over the judgment proceeds under orders of Cronin J made on 23 November 2017, reserved the costs of that hearing and listed the matter for mention at 2:15pm on 30 April 2019.
On 30 April 2019 Tree J ordered further mention of the matter to be listed at a time and date before me, or such other judge as the Adelaide Registry may advise to the parties. The outstanding matters were listed before me on 22 July 2019 when I reserved judgment.
Each of the husband and the wife were represented at that hearing as were PP Lawyers and NF Pty Ltd. NS Company did not attend and were not represented.

Applications to Intervene

Applications in a Case to intervene in these proceedings were filed by each of NF Pty Ltd and NS Company.
NS Company were represented at the hearing before the Honourable Justice Tree on 17 December 2018.
NS Company did not make, file and serve any written submissions in relation to the wife’s Application in a Case filed 15 October 2018 or the husband’s Response filed 29 October 2018 pursuant to [3] of the orders of Tree J of 17 December 2018. They did not make, file and serve any material or further material (including written submissions) in support of their claim with respect to a lien over the judgment proceeds arising from the orders of Cronin J made 23 November 2017, pursuant to the terms of [6] of Tree J’s order of that same date.
They were represented at the hearing before Tree J on 5 March 2019 but not on 30 April 2019 and nor before me on 22 July 2019.
In circumstances where NS Company have not prosecuted their application, or complied with orders of the court with respect to submissions, or attended on the hearings to which I have referred I intend to dismiss that application.
Each of PP Lawyers and NF Pty Ltd filed Notices of Intervention by Person Entitled to Intervene pursuant to the provisions of rule 6.06(1) of the Family Law Rules 2004.
Rule 6.06(1) and 6.06(2) are followed by an explanatory note which give examples of when a person is entitled under the Act to intervene in a case without the court’s permission.
The relevant note is note (a) which refers to section 79(10) of the Family Law Act 1975 relating to the person or class of persons entitled to become parties to proceedings in which an application is made to the court for an order under section 79 of the Family Law Act 1975.
Section 79(10)(a) provides that a creditor of a party to the proceedings is entitled to become a party to the proceedings in which application is made for an order for settlement of property pursuant to section 79 of the Family Law Act 1975 if the creditor may not be able to recover his or her debt if the order was made.
The process involved in filing a notice pursuant to rule 6.06 requires the filing of the said notice together with a supporting affidavit setting out facts relied on to support the notice and attaching a schedule setting out any orders sought.
In written submissions filed pursuant to the orders of Tree J, neither the husband nor the wife raised any objection to the proposed interventions of either PP Lawyers or NF Pty Ltd, nor did either party file any Response to the Application in a Case to intervene filed by NF Pty Ltd.
In addition, by order of Registrar Paxton of 30 October 2018 the wife was to formally confirm in writing if she objected to the proposed interventions by 4:00pm on 9 November 2018. There is no evidence before the court that any such objection was raised by the wife.
The Application in a Case filed by the wife on 15 October 2018 is to my mind an application seeking an order by way of a machinery provision with respect to the terms of [2] of the order of Cronin J of 23 November 2017, namely the method of payment.
In Ravasini & Ravasini (1983) FLC 91-312 at p 78,128 the Full Court described such order as:
“…secondary orders made as a consequence of the substantive order, to give it operation and effect…”
In Molier & Van Wyk (1980) FLC 90-911, the Full Court said at p 75,768:
“It has been decided that while this Court has no power to vary an order for property settlement, it has power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that this does not affect the substantive property rights of the parties…This power exists whether or not liberty to apply is reserved in respect of the order…”
The wife seeks that payment of the amount of $2,000,000.00 to her by the husband as ordered by Cronin J on 23 November 2017 be by way of payment directly to her by Electronic Funds Transfer. She also seeks that the husband pay interest on the sum of $2,000,000.00.
The order with respect to the payment to her of $2,000,000.00 at [2] of Cronin J’s order was in the following terms:
2.By 4.00pm on 31 January 2018 (or at such other time as the parties may agree in writing), the husband:
a)Pay to the wife $1.7 million; and
b)Authorise his solicitors to release to the wife, the sum of $300,000 held on trust pursuant to the orders of this court.
His Honour did not specify the method of payment to the wife.
The husband by his solicitors determined to send a cheque in the sum of $2,000,000.00 to the wife’s then solicitors NS Company, payable to the wife. They did so in circumstances where an enquiry of those solicitors by correspondence dated 25 January 2018 with respect to the method of payment of the funds to the wife was met with no response.
The wife submitted that orders had been made at previous times in the life of this litigation for payment of money “to the wife or as she may direct in writing” and to payment of monies to her legal representatives “on behalf of the wife”. She submitted that the husband previously had no difficulty in making payments directly to her through her nominated accounts.
The husband submitted that whilst historically he had paid the wife periodic spousal maintenance by direct deposit into her bank account, this particular payment was to be made at a time when he was aware of the liens claimed by her former solicitors.
He submitted that he was not precluded from fulfilling his obligations under the orders of Cronin J by making payment to the wife’s agent, namely her solicitors NS Company, in the absence of a payment method being specified in the orders or any prior notice from the wife or her agent.
It was submitted that NS Company were the solicitors on record for the wife at the time the cheque was delivered, that they had acted for the wife in relation to the property settlement proceedings and continued to act for her with respect to subsequent appeals and had accepted the transfers of land also referred to in the order of Cronin J.
It was further submitted that it was more than reasonable for him to expect that NS Company had actual or ostensible authority to act as the wife’s agent with respect to all matters relating to the property settlement proceedings. In the husband’s submission that included acceptance of the cheque payable to the wife in the sum of $2,000,000.00.
It is hard to understand why in a matter such as this, where litigation has extended over a period of some 12 years, where the husband, by the time payment was due on 31 January 2018, knew that liens were being claimed against those funds by previous solicitors of the wife and further, that the order was silent as to the method of payment to the wife, that he did not seek through his legal representatives to have the matter relisted before Cronin J seeking a machinery provision order to clarify the method of payment.
Such a course would have enabled the trial judge to deal with the matter expeditiously and avoid further protracted litigation and expense.
The course adopted by him is to my mind unhelpful at the very least.
Likewise of course it was open to the wife, knowing the payment was due on 31 January 2018, to inform the husband through his legal representatives of her desired method of payment and, in the absence of agreement, seek to have the matter relisted to specify the method of payment. That was equally unhelpful.
I find, taking into consideration the authorities to which I have previously referred and the facts of this case, that the wife’s application was an application for a machinery provision to give that order operation and effect.
Both firms of solicitors previously acted for the wife in these proceedings.
PP Lawyers have obtained judgments against the wife with respect to various of their legal costs that remain unpaid.[1]
[1] Paragraph 17 – submissions of PP Lawyers filed 22 February 2019
On 8 April 2016 the wife entered into a Costs Agreement with NF Pty Ltd as a consequence of instructing that firm to act for her. She terminated her instructions by email on 7 September 2016.[2]
[2] Paragraph 4 and 5 – affidavit of Mr NG filed 30 October 2018
On 23 September 2016 NF Pty Ltd issued final tax invoices to the wife pursuant to clause 13.13 of the Costs Agreement for professional services rendered to her for all her matters in which NF Pty Ltd acted.[3]
[3] Paragraph 5 – affidavit of Mr NF filed 21 January 2019
The wife had the opportunity to dispute the quantum of the NF Pty Ltd account.[4]
[4] Paragraph 24 – Interveners Submissions – NF Pty Ltd filed 21 January 2019
The wife has not disputed the NF Pty Ltd Costs Agreement or applied for adjudication of the NF Pty Ltd account and is now out of time to do so (see the Legal Practitioners Act 1981 (SA), Schedule 3, 37(4)).[5]
[5] Paragraph 25 – Interveners Submissions – NF Pty Ltd filed 21 January 2019
In all of those circumstances I find that PP Lawyers and NF Pty Ltd are entitled to intervene in these proceedings pursuant to rule 6.06 of the Family Law Rules. To the extent that it is necessary I will make orders to that effect.
I make that order in circumstances where:
“The solicitor’s equitable right exists before the court is asked to intervene to protect it; it “arises immediately upon the recovery of monies through the exertions of the solicitor…”[6]
[6]Carew Counsel Pty Ltd v French [2002] VSCA 1 at [33]
In [41] of the judgment of Campbell J in Firth v Centrelink & Anor [2002] NSWSC 564 His Honour said:
“In Twigg v Keady (1996) 135 FLR 257 at 290 Kay J said, of a solicitor’s lien:
“In the words of Jordan CJ, I accept that in practice the solicitor has always been treated as possessing equitable rights in the judgment independently of any declaration of those rights, and that the court’s assistance is invoked not to create the rights but to enforce them…”
That is clearly one of the circumstances contemplated by the terms of r 6.06 of the Family Law Rules 2004.

Wife’s Application in a Case

On 23 November 2017 Cronin J ordered that the husband pay to the wife the total sum of $2,000,000.00 by way of paying to her $1,700,000.00 and authorising his solicitors to release to her the sum of $300,000.00 held on trust pursuant to orders of the court. Payment was due by 31 January 2018 (or such other time as the parties may agree in writing).
During the course of litigation between the husband and the wife which commenced in 2005 and concluded in terms of substantive applications on 23 November 2017 (save as to appeals) the wife was represented at various times by approximately 15 different firms of solicitors.
The parties were engaged in litigation with respect to both property settlement and, pending their son S attaining the age of 18 years, parenting issues.
PP Lawyers acted for the wife from April 2008 until January 2011.[7]
[7] Paragraph 4 – Affidavit of Ms PP filed 18 January 2019
There was subsequently significant dispute between PP Lawyers and the wife with respect to payment of legal fees, resulting in litigation in various South Australian courts.
The dispute between the husband and the wife resulting in the wife’s Application in a Case and the husband’s Response centred around the husband electing to pay to the wife the funds ordered by Cronin J by way of cheque payable to her, drawn on his solicitors trust account and delivered to the wife’s then solicitors NS Company on 31 January 2018.
It is the wife’s case that the order of Cronin J specifically referred to “payment to the wife” and that by forwarding the funds ordered in the manner he did, the husband failed to comply with the order.
There is nothing in the judgment of Cronin J that is of assistance as to the question of whether His Honour considered the issue of the method of payment of the judgment sum to the wife.
The cheque drawn by the husband’s solicitors on their trust account and forwarded to NS Company was a cheque payable to the wife, not the trust account of NS Company.
There is no evidence that the parties agreed for payment to occur at any time other than 31 January 2018, although it is to be noted that on 31 January 2018 the wife filed an Application in a Case through her then solicitors NS Company seeking that the orders of Cronin J made 23 November 2017 be stayed until further order.
In her affidavit in support of the Application in a Case she deposed to filing a Notice of Appeal on 21 December 2017 with respect to the final orders made by Cronin J, which as at 31 January 2018 had not been allocated a hearing date. She deposed in [7] and [8] of that affidavit to concern that if some of the final orders of Cronin J were effected, the outcome of her appeal may be rendered nugatory.
The application was refused by Cronin J on 22 February 2018.
On 30 November 2017 PP Lawyers gave notice to Kennedy Partners, the husband’s solicitors, of a lien they were claiming over “the fruits of the litigation”.
On 13 December 2017 NF Pty Ltd Lawyers provided notice to the husband’s solicitors of the lien they were claiming over the “fruits of the litigation”.
Both NF Pty Ltd and PP Lawyers claimed their liens over the total amount of the judgment sum.
Accordingly as at 13 December 2017, both the husband and his solicitors had notice of the liens claimed by PP Lawyers and NF Pty Ltd.
The husband deposed in [3.3] of his affidavit filed 29 October 2018 that on 19 December 2017 copies of correspondence received by his solicitors from both PP Lawyers and NF Pty Ltd claiming the liens to which I have referred were forwarded to NS Company.
NS Company had filed a limited Notice of Address for Service on behalf of the wife in these proceedings on 10 November 2017.
Notwithstanding that the specific application that the said Notice of Address for Service was stated to relate to was unsuccessful in that it was dismissed by Justice Cronin on 13 November 2017, NS Company were given as the wife’s address for service on the Notice of Appeal filed on 21 December 2017. They also forwarded correspondence to PP Lawyers on 22 December 2017 with respect to the lien claimed by PP Lawyers wherein they said inter alia:
“…We will seek our client’s instructions to execute the Irrevocable Authority and advise you of our progress in that regard in due course…”
On 25 January 2018 the husband’s solicitors’ forwarded correspondence to NS Company with respect to the method of payment of the funds to the wife. The solicitors advised inter alia:
“…in the absence of receiving an order made by the Family Court of Australia specifying otherwise, we will pay the settlement funds to your client by EFT to your trust account. Please provide your trust account details.”
No response to that correspondence was received, however correspondence was forwarded to the husband’s solicitors by NS Company dated 30 January 2018 with respect to a proposed application to be filed by the wife seeking a stay of the orders of Cronin J of 23 November 2017.
This application was filed on 31 January 2018 together with an extensive affidavit of the wife. Both documents identified NS Company as being the wife’s address for service.
The wife asserted in that affidavit that NS Company had no authority either actual or ostensible from her to act on her behalf and receive the cheque payable to her in the sum of $2,000,000.00 forwarded to them by the husband’s solicitors on 31 January 2018.
In written submissions filed on 9 January 2019 on behalf of the wife it was contended on her behalf that:
·Cronin J’s order provided for payment “to the wife”;
·previously over the history of the litigation orders had been made from time to time for payment to her which payments had been made directly to her nominated account by the husband;
·orders had also been made at various times for payments to her legal representatives “on behalf of the wife” and for payment of money “to the wife or as she may direct in writing”;
·that the husband had never previously had any difficulty in distinguishing between the terms of those orders; and
·that he had made numerous payments directly into her nominated bank account.
It is the wife’s position that the husband failed to comply with the terms of the order of Cronin J.
It is her position that he remains in default of that order and that, in addition to the sum of $2,000,000.00 ordered to be paid to her by Cronin J, interest has accrued from 31 January 2018.
The husband conceded in both affidavit evidence and written submissions that on many occasions he made payments directly to the wife to her nominated bank account, but submitted that historically they were payments of periodic spousal maintenance which were not the subject of any liens claimed by the wife’s former solicitors.
It was submitted on his behalf that it was entirely reasonable for his solicitors to rely upon “NS Company’s plainly ostensible authority”[8] and that if the wife had complaints as to NS Company acting outside of its authority that was a matter between the wife and NS Company and not as between the husband and the wife.
[8] Paragraph 12 – Husband’s written submissions filed 21 January 2019
In [6] of those written submissions it was submitted, in reference to the remarks of Lord Denning referred to therein[9], that the wife’s retention of NS Company as her solicitors made them her agent. It was further submitted that a party is bound by the acts of their agent so long as they are within the agents’ actual or ostensible authority, with reference to the decision in the case of Harvey & Phillips[10] referred to therein.
[9]Griffiths v Evans [1953] 2 All E R 1364, 1371, citing In re Newen [1903] 1 Ch 812, 818
[10] (1956) 95 CLR 235
It was further submitted in [8] of the said written submissions that it was more than reasonable for the husband to expect that NS Company had actual or ostensible authority to act as the wife’s agent with respect to all matters relating to the property settlement proceedings, including to receive the cheque in the sum of $2,000,000.00 drawn on the trust account of the husband’s solicitors in fulfilment of the husband’s obligations pursuant to the final orders.

Although I am satisfied that NS Company were the wife’s solicitors at the relevant time, I am not satisfied that the question of how the monies were to be paid to the wife was a matter “that may reasonably be expected to arise for decision in the cause.”[11]
[11]Griffiths v Evans (supra)
The husband had notice of the liens claimed by PP Lawyers and NF Pty Ltd for some weeks prior to the due date for payment to the wife.
As I have already said, it would have been preferable for the husband to have sought to resolve the issue of the method of payment with the wife or, in the unlikely event that any agreement could be reached in that regard, have sought the assistance of the court with respect to the method of payment. As is clearly the history in this matter, any opportunity for litigation is seemingly enthusiastically embraced by the parties. This dispute as to the actual method of payment of the monies to the wife is yet another example.
The cheque was received at the offices of NS Company. It was in the sum of $2,000,000.00. The reality of this matter is that the wife has not received the $2,000,000.00 to which she was entitled pursuant to the final order of Cronin J of 23 November 2017. Neither have the liens over the “fruits of the litigation” as claimed by the first and second intervenors been satisfied.
The wife filed an application to stay the orders of 23 November 2017 on the day payment was due to her, namely 31 January 2018. This application was refused by the court on 22 February 2018.
The wife did not file the Application in a Case with respect to the payment of the outstanding sum to her and with respect to the method of that payment until 15 October 2018.
It would have been obvious to the husband’s solicitors that, in the absence of any response to their correspondence to NS Company dated 25 January 2018, there was a possibility of further conflict arising with respect to the method of payment.
Neither PP Lawyers nor NF Pty Ltd had released the husband from his obligations pursuant to their claims of lien at the time of the delivery of the cheque to NS Company.
If he paid the monies directly to the wife in circumstances of knowledge of the asserted liens, the issue of collusion with the wife to ignore or attempt to defeat the claims of her former lawyers would have arisen and therefore put him at risk of becoming personally liable for the solicitors costs claimed as Jordan CJ said in Ex parte Patience; Makinson v The Minister (1940) 40SR (NSW) 96 at 100:
“…Further, if the client and a judgment debtor make a collusive arrangement for the purpose of defeating the solicitor’s right, the Court will enforce that right against the judgment debtor notwithstanding the arrangement and notwithstanding that no notice of the solicitor’s claim had been given to the judgment debtor prior to the arrangement…”
The matter of the solicitors claimed liens is not a matter that to my mind involves the husband.
I reject the submission made on behalf of the wife in [27] of the written submissions filed[12] where it was submitted that:
“The circumstances surrounding the claimed liens, the husband’s actions in causing the cheque to be delivered are matters that should be addressed in further material before the court and/or by cross-examination of the relevant witnesses.
[12] Wife’s written submissions filed 9 January 2019
The husband owes the wife $2,000,000.00. The decisions he made with respect to payment of same has resulted in a failure to pay that sum to the wife. Accordingly, it remains due and owing.
For the reasons to which I have already referred at length if the husband were to pay those monies directly to the wife he would be at risk of becoming personably liable for legal fees claimed by the solicitors against the wife.
In addition to the principal sum of $2,000,000.00 the wife seeks payment to her of interest in the sum of $99,452.00 as at the date of the filing of her application on 15 October 2018.
The question of payment of interest on monies ordered to be paid by the court (other than periodic maintenance payments) is determined in accordance with section 117B of the Family Law Act 1975.
Section 117B is in the following terms:
1.Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:
a.the date on which the order is made; or
b.the date on which the order takes effect;
whichever is later, on so much of the money as is from time to time unpaid.
2.A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first‑mentioned order or may order:
a.that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or
b.that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).
It is clear from the terms of section 117B(2) that notwithstanding the terms of paragraph 117B(1), the court may order that interest is not payable on the judgment sum. The court is also empowered to order that interest be payable at a rate other than as prescribed by the applicable rules of the court or to be calculated from a date other than that referred to in the original order.
I find that this is a matter where the court should exercise its discretion. I decline to make an order for interest on the judgment sum as sought by the wife.
I have already referred to the unhelpful approach taken by the husband with respect to the question of payment of the judgment sum to the wife.
I am mindful however that on the day payment was due to the wife an application was filed on her behalf seeking to stay payment of the judgment sum to her in circumstances where she had filed an appeal with respect to the substantive order. That application was refused.
Even in those circumstances the wife did not file an application with respect to the payment of the funds and the method of same for a period of almost seven months after the date upon which payment was due to her under the substantive order.
A cheque payable to the wife was delivered to her then solicitors NS Company on the date payment was due in the sum of $2,000,000.00. The wife took no steps to negotiate any arrangements whereby for example, the cheque could be banked, drawn upon and the proceeds held in her solicitors’ trust account pending resolution of the issue of the liens as claimed by her former solicitors. If the wife was concerned that interest would not accrue in her solicitors’ trust account then other avenues were available to her in consultation with her previous solicitors, to ensure that while any dispute they had was unresolved the funds were placed in an interest bearing deposit. These were all avenues open to the wife.
Taking into account those matters, I find this is a case in which it would be unreasonable to order that the husband pay interest on the judgment sum.
The cheque that was forwarded to the wife’s then solicitors was a cheque payable to the wife, as ordered by the court. How she elected to deal with the cheque and the funds that it represented was a matter for her to determine in accordance with the issues that had arisen with respect to previous legal representation.
The issue of the wife’s dispute with her former solicitors is not one that involves the husband. The husband’s obligation is to the wife.
I find that the dispute as between the husband and the wife should be resolved by way of the husband paying into court on account of the wife the sum of $2,000,000.00 within seven days of the making of an order.
I find that no interest should be payable on that amount and that the wife’s application in that regard should be dismissed. I see no basis for the husband to be required to file and serve a financial statement pursuant to rule 20.07 of the Family Law Rules 2004.
I am not satisfied that there are any circumstances with respect to the Application in a Case filed by the wife on 15 October 2018 and the Response thereto filed by the husband on 29 October 2018 that would justify the court in making an order as to costs in favour of or against either party.
I find that it is appropriate in accordance with section 117(1) of the Family Law Act 1975 that each party bear his or her own costs. I otherwise intend to dismiss each of the Application in a Case and the Response to which I have referred. The result of that order will be that proceedings as between the husband and the wife will be finalised forthwith upon the payment by the husband into court of the sum of $2,000,000.00 on account of the wife.

Issue of Equitable Liens claimed by Solicitors

Each of PP Lawyers and NF Pty Ltd sought orders in affidavits filed by Ms PP and Mr NG respectively in support of each of their Notices of Intervention by Person Entitled to Intervene inter alia:
“That the cheque for $2 million drawn in the applicant’s name and currently held by NS Company Lawyers be forwarded by them to the Registry Manager of the Adelaide Registry of the Family Court of Australia to be held by the Adelaide Registry to be invested pending further order.”
The time for presentation of the particular cheque to which they refer has of course elapsed but the order that I intend to make for the husband to pay the sum of $2,000,000.00 into court on account of the wife will have the same effect.
Each of the legal firms have claimed their lien over the funds payable to the wife by the husband on the basis of being entitled to have costs incurred by her during their respective periods of legal representation that remain unpaid and to which they claim they are entitled pursuant to the equitable lien referred to as a solicitors “fruits of the action” lien paid from those funds.
The nature of a solicitors “fruits of the action” lien is discussed in Firth v Centrelink & Anor [2002] NSWSC 564 in the judgment of Campbell J in [33] and [34] where His Honour said:
“33.…A solicitor whose efforts result in the recovery of money for his client has an equitable right to have his proper costs and disbursements paid from the money so recovered.
34.In Ex Parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96 Jordan CJ gave what has become a classic exposition of the solicitor’s right, contrasting that right with a common law lien. Jordan CJ said, at 100-101:
“A solicitor has no lien for his costs over any property which has not come into his possession. If, however, as the result of legal proceedings in which the solicitor has acted for the client, the client obtains a judgment or award or compromise for the payment of money, although the solicitor acquires no common law title to his client’s right to receive the money or to any part of that right, he acquires a right to have his costs paid out of the money, which is analogous to the right which would be created by an equitable assignment of a corresponding part of the money by the client to the solicitor. That is to say, the solicitor has an equitable right to be paid his costs out of the money; and if he gives notice of his right to the person who is liable to pay it, only the solicitor and not the client can give a good discharge to that person for an amount of the money equivalent to the solicitor’s costs: Welsh v Hole 1 Doug 238. If the person liable to pay refuses, after notice, to pay the costs of the solicitor, the solicitor may obtain a rule of Court directing that the amount of his costs be paid to him and not to the client; and payment by the judgment debtor to the client after notice of the solicitor’s claim is no answer to an application for such a rule: Read v Dupper 6 TR 361; Ormerod v Tate 1 East 464; Ross v Buxton 42 Ch D 190. Further, if the client and a judgment debtor make a collusive arrangement for the purpose of defeating the solicitor’s right, the Court will enforce that right against the judgment debtor notwithstanding the arrangement and notwithstanding that no notice of the solicitor’s claim had been given to the judgment debtor prior to the arrangement: Ross v Buxton. These special rights have no resemblance to a solicitor’s general possessory lien, although they are sometimes miscalled liens: Bozon v Holland 4 My & Cr 354. In Barker v St Quinton 12 M & W 441 at 451 Parke B said that “the lien which an attorney is said to have on a judgment (which is, perhaps, an incorrect expression) is merely a claim to the equitable interference of the Court to have that judgment held as security for his debt, ”a remark which is reproduced in Chitty’s Archbold, and has been repeated in many later authorities: cf also Smedley v Philpot 3 M & W 573 at 585-7; North v Stewart 15 App Cas 452 at 463. In practice, however, the solicitor has always been treated as possessing equitable rights in the judgment independently of any declaration of those rights, and the Court’s assistance is invoked not to create the rights but to enforce them: Lord v Colvin 2 Drew & Sm 82 at 92-3; Haymes v Cooper 33 Beav 431 at 433. The rights are assignable: Briscoe v Briscoe [1892] 3 Ch 543.
In [35] of that same judgment His Honour set out an exhaustive list of authorities which he described as establishing various propositions concerning the rights of the solicitor with respect to “fruits of the action” lien.
Of particular relevance to this matter are the principles referred to in [35(d)] to [35(g)] of His Honour’s judgment, namely that:
“The solicitor need not be still acting for the client at the time that the money was recovered…([35(d)])
For the right to arise it must be shown that there is a sufficient causal link between solicitor’s exertions and the recovery of the fund of money…([35(e)]).
The quantum of money for which the solicitor has the equitable right is the amount which is properly owing to the solicitor by the client, whether that amount be ascertained by taxation of a bill of costs, or assessment, or pursuant to a costs agreement…([35(f)]).
The solicitor’s equitable right exists before the court is asked to intervene to protect it; it “arises immediately upon the recovery of monies through the exertions of the solicitor…([35(g)])”
In an affidavit filed 16 November 2018 Mr NG, one of three Directors of NF Pty Ltd deposed in [6] to acting for the wife in family law proceedings between 8 April 2016 and 7 September 2016.
In the course of these proceedings the wife has instructed and been represented by approximately 15 firms of solicitors. In [18] to [23] inclusive of the said affidavit of Ms PP she deposed to:
·    PP Lawyers lien taking priority over claims of the wife’s other former solicitors because it arose at the time PP Lawyers ceased acting for the wife on 7 January 2011;
·    The various actions in the Family Court of Australia, the Supreme Court of South Australia, the District Court of South Australia and the Magistrates Court of South Australia as between the wife and PP Lawyers with respect to outstanding fees;
·    Various judgments in favour of PP Lawyers in relation to the various actions;
·    Significant costs orders against the wife in relation to the various proceedings;
·    That none of the costs orders quantified by the courts have been paid to PP Lawyers by the wife;
·    That some costs orders remain pending to be quantified;
·    That PP Lawyers as at the date of the filing of the affidavit has claimed in excess of $1,000,000.00 from the wife for existing costs orders made and those yet to be quantified.
There is no evidence to date as to the exact amount sought by PP Lawyers against the wife by way of outstanding legal fees and costs orders.
In the affidavit of Mr NG filed 16 November 2018 he deposed in [5] thereof to the wife entering into a costs agreement with NF Pty Ltd on 8 April 2016 and in [10] to NF Pty Ltd issuing the wife final accounts for professional services on 23 September 2016 in the sum of $107,635.84 plus interest accruing in accordance with the costs schedule set out in the Legal Practitioners Act (SA) 1981.
In [25.3] of the said affidavit Mr NG deposes to seeking payment to NF Pty Ltd from the funds ordered to be paid to the wife the sum of $87,966.64 plus costs in accordance with NF Pty Ltd’ Terms of Engagement and interest to be calculated in accordance with the Legal Practitioners Act (SA) 1981.
In the wife’s submissions in response to the asserted liens and/or the relief sought by the intervenors filed 14 February 2019 and in particular in [6] thereof it was submitted:
“The Applicant Wife acknowledges and adopts paragraphs 2 and 3 of the CL’s Interveners Submissions dated 18 January 2019 as accurately identifying and setting out the legal principles associated with the nature of the liens being asserted by the PL and CL (which liens are denied by the wife).”
Paragraphs 9, 10 and 11 of the said submissions were in the following terms:
“9.The Applicant Wife denies that the carriage of the substantive proceedings on behalf of the Wife by the interveners provides sufficient causal connection to the Wife’s ability to obtain the Orders.
10.Accordingly, the Wife contends that there is an insufficient causal link for the Interveners to claim the asserted liens over “the entirety of the property” received by the Wife under the Orders.
11.The connection to the Wife’s ability to obtain the Orders and the causal link to the property received by the Wife under the Orders remains in dispute and is a matter that will require cross-examination of the representatives of the Interveners.”
Paragraph 14 of the said submissions is in the following term:
“14.There has been no determination as to whether there is a causal link between the property the Wife received under the Orders and the efforts of the Interveners.”
It is clear from those submissions and further matters set out in [18] and following of the said submissions that the wife denies the existence of the alleged liens and further, at least with respect to PP Lawyers, anticipates dispute over the amount she anticipates will be claimed.
In [15] to [17] of the written submissions on behalf of the wife referred to, it is accepted that the judgment sum of $2,000,000.00 is “part of the property over which the asserted liens are claimed” but it is further submitted that that is not the only property available to satisfy the asserted liens. This is in circumstances where the judgment of Cronin J also involved the transfer to the wife of certain parcels of real estate.
A solicitor has no lien for his costs over any property which has not come into his possession.[13]
[13]Ex Parte Patience; Makinson v The Minister (supra)
In [23], [24] and [31] of the written submissions filed on behalf of the wife on 14 February 2019, it is contended on behalf of the wife that if the quantum of the intervenors’ claims is less than the amount that could be preserved by reference to real property the wife received pursuant to the orders of Cronin J, the court could make orders preserving the said real property pending a determination of the quantum of the intervenors’ claims and that in those circumstances the court should determine whether the total amount of the $2,000,000.00 judgment sum should be subject to the claimed liens.
Both of the intervenors in these proceedings seek relief by way of claimed liens over the judgment sum of $2,000,000.00 pursuant to the equitable principles in relation to a “fruits of the action” lien.
As Jordan CJ went on to say in Ex Parte Patience (supra):
“…If, however, as the result of legal proceedings in which the solicitor has acted for the client, the client obtains a judgment or reward or compromise for the payment of money, although the solicitor requires no common law title to his client’s right to receive the money or to any part of that right, he acquires a right to have his costs paid out of the money, which is an analogous to the right which would be created by an equitable assignment of a corresponding part of the money by the client to the solicitor. That is to say, the solicitor has an equitable right to be paid his costs out of the money…”

I do not accept the submissions in relation to the claimed lien being able to be satisfied by the wife’s interest in parcels of real estate.

Conclusion

Taking all of those matters into account, I find that the orders that I intend to make will finalise the dispute as between the husband and the wife but, leave pending the dispute between the wife and the first and second intervenors.
I find that on the material before me to date I am unable to determine the extent of that dispute. I will adjourn for further directions the issue if the process of determination of the existence or otherwise of the equitable liens to which I have referred and, if appropriate, the quantum of those liens.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 24 January 2020.

Associate:

Date: 24 January 2020