WEI & WEI

Case [2020] FamCA 38

FAMILY COURT OF AUSTRALIA

WEI & WEI [2020] FamCA 38

FAMILY LAW – PROPERTY – undefended hearing – inadequacy of evidence to determine totality of property falling for division – funds in a solicitor’s trust account the only remaining property.

FAMILY LAW – PRACTICE AND PROCEDURE – Equitable Charge – wrongly described by intervenor as an equitable lien – has wife’s former solicitors owed substantial sums in unpaid fees – former solicitors for the wife asserting a claim by way of solicitor’s equitable lien over amount found due to the wife under s 79 – whether solicitor’s claim properly characterised as a “fruits of judgment” lien – held, no.

FAMILY LAW – EVIDENCE – serious deficiencies in husband’s evidence in demonstrating the existence of legal and equitable interests in accordance with Stanford v Stanford principles – proper approach to the division of the only asset in Australia, namely the funds in trust.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth), ss 21, 75, 79, 92, pt VIIIA

Foreign Evidence Act 1994 (Cth)

Foreign Judgments Act 1991 (Cth)
Migration Regulations 1994 (Cth)
Legal Professional Uniform Law Application Act 2014 (Vic), div 3, pt 4.3

Abalos v Australian Postal Commission (1990) 171 CLR 167
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Allesch v Maunz (2000) 203 CLR 172
Ambler & Ambler [2019] FamCA 870
Avco Financial Services Ltd v White [1977] VR 561
Ashby v Slipper (2014) 219 FCR 322
Ashton v Pratt (2015) 88 NSWLR 281
Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297

Bevan & Bevan (2013) 49 Fam LR 387
Birmingham v Renfrew (1937) 57 CLR 666

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
British South Africa Co v Companhia de Mocambique [1893] AC 602
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842

Chang & Su (2002) 29 Fam LR 406

Chester v Cassidy Gibson Howlin (1994) 18 Fam LR 463
Coghlan v Cumberland [1898] 1 Ch 704

Coldham v Coldham [2014] FCCA 2377

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466

Cooper v Critchley [1955] Ch 431

Cradock v The Scottish Provident Institution (1893) 69 LT 380, 382
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
De Winter & De Winter (1979) 4 Fam LR 583
Dearman v Dearman (1908) 7 CLR 549
Devries v Australian National Railways Commission (1993) 177 CLR 472

Elias v Mitchell [1972] Ch 652

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 214 CLR 118
Galea v Galea (1990) 19 NSWLR 263
Gavranovic & Gavranovic [1992] FamCA 20
GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337 (QB)
Girlock (Sales) Pty Ltd vHurrell (1982) 149 CLR 155
Hodges Hall & Jovanovic and Markov (1995) 19 Fam LR 241
Holloway v McFeeters (1956) 94 CLR 470

Continue reading WEI & WEI

Sign in free to access the full text

Details
AGLC
WEI & WEI [2020] FamCA 38
Case
[2020] FamCA 38
Decision Date

CaseChat Overview and Summary

In the matter of *WEI & WEI*, the Honourable Justice Wilson of the Family Court of Australia considered a property dispute between the parties, where the husband's evidence regarding his legal and equitable interests was found to be deficient. The primary asset for division was a sum of money held in a solicitor's trust account.

The court was required to determine the appropriate approach to dividing the funds in the trust account, given the inadequacy of the husband's evidence. A further issue arose concerning a claim by the wife's former solicitors, J Lawyers Pty Ltd, for unpaid fees, which they asserted by way of an equitable lien over the amount found due to the wife. The court had to consider whether this claim was properly characterised as a "fruits of judgment" lien.

Justice Wilson reasoned that the husband's evidence did not sufficiently demonstrate the existence of legal and equitable interests in accordance with the principles in *Stanford v Stanford*. The court found that the claim by J Lawyers Pty Ltd was not a "fruits of judgment" lien, but rather an enforceable equitable charge. The court ordered that 65% of the funds in the trust account, totalling $113,925.95, be paid to the respondent. The applicant was entitled to the remaining 35%, amounting to $61,344.70, which was subject to an enforceable equitable charge in favour of J Lawyers Pty Ltd. This sum was to be paid forthwith from the trust account to J Lawyers Pty Ltd, and the proceeding was otherwise dismissed.

Orders

Orders of the court

1.

The sum of $113 925.95 being 65% of the amount in the trust account is to be paid forthwith to the respondent.

2.

The applicant is entitled to 35% of the sum in trust, namely $61 344.70.

3.

The sum of $61 344.70 referred to in paragraph 2 above is subject to an enforceable equitable charge in favour of J Lawyers Pty Ltd.

4.

The sum of $61 344.70 is to be paid forthwith from the trust account to J Lawyers Pty Ltd.

5.

This proceeding is otherwise 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.