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 PROCDURE – 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.
[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.
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AGLC
Wei & Wei (No 3) [2020] FamCA 98
Case
[2020] FamCA 98
Decision Date
CaseChat Overview and Summary
This matter came before the Honourable Justice Wilson in the Family Court of Australia concerning a property dispute between the applicant and respondent. The primary issue was the division of the parties' property, with the only remaining asset being funds held in a solicitor's trust account. The court also considered a claim by the wife's former solicitors, J Lawyers Pty Ltd, for unpaid fees.
The court was required to determine the proper approach to dividing the funds in the solicitor's trust account, given deficiencies in the husband's evidence regarding his legal and equitable interests in accordance with the principles in *Stanford v Stanford*. A further legal issue was the characterisation of J Lawyers Pty Ltd's claim over the funds, which they asserted by way of a solicitor's equitable lien, and whether this claim constituted a "fruits of judgment" lien.
Justice Wilson found that the husband's evidence was insufficient to establish his claimed legal and equitable interests. The court determined that J Lawyers Pty Ltd's claim was not properly characterised as a "fruits of judgment" lien, but rather as an enforceable equitable charge over the funds found to be due to the wife. The court ordered that the respondent (wife) receive 65% of the funds in trust, totalling $261,761.54. The applicant (husband) was entitled to 35%, amounting to $140,948.52. This latter sum was subject to an enforceable equitable charge in favour of J Lawyers Pty Ltd, to whom $133,765.39 was ordered to be paid forthwith from the trust accounts. The remaining balance of $7,183.13 was to be paid to the applicant. The proceeding was otherwise dismissed.
Orders
Orders of the court
1.
the sum of $261,761.54 being 65% of the amount in the trust accounts is to be paid forthwith to the respondent.
2.
The applicant is entitled to 35% of the sum in trust, namely $140,948.52.
3.
The sum of $140,948.52 referred to in paragraph 2 above is subject to an enforceable equitable charge in favour of J Lawyers Pty Ltd.
4.
The sum of $133,765.39 is to be paid forthwith from the trust accounts to J Lawyers Pty Ltd.
5.
The balance of the sum in trust after payment to the respondent of $261,761.54 and after payment to J Lawyers Pty Ltd of $133,765.39 (the balance being $7,183.13) is to be paid forthwith to the applicant at her last known address.
6.
This proceeding is otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.