WGOC & GH and Anor (No. 2) - [2007] FamCA 1103

FAMILY COURT OF AUSTRALIA

WGOC & GH AND ANOR (NO. 2)	[2007] FamCA 1103
FAMILY LAW – COSTS
Family Law Act 1975 (Cth)
APPLICANT:		WGOC

FIRST RESPONDENT:	GH
SECOND RESPONDENT:	GJK

FILE NUMBER:

BRF

1742

2000

DATE DELIVERED:

2 August 2007

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

12 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cooke of Counsel

SOLICITORS FOR THE APPLICANT:

Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT:	Ms Mazur, solicitor of Butler McDermott Lawyers
COUNSEL FOR THE SECOND RESPONDENT:	Ms Carew of Counsel
SOLICITORS FOR THE SECOND RESPONDENT:	Bradley & Bray Solicitors
SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER:	Ms McArdle, Solicitor appeared as agent for Legal Aid Queensland

Orders

The amount of $792.00 be immediately disbursed to Legal Aid Queensland on account of the previous costs orders made in favour of the Third Respondent.
The amount of $141,226.25 be paid from the trust account of Bradley & Bray Solicitors to the trust account of Butler McDermott, lawyers for the First Respondent, such funds to be retained in the solicitor’s trust account pending the determination by the Full Court on the issue of the Wife’s costs of the proceedings (other than the appeal).
Butler McDermott be at liberty to invest the sum of $141,226.25 in such form as is considered most appropriate to gain the best return, subject to such investment being in accordance with authorised investments for trust accounts pursuant to Queensland law.
The amount of $139,495.12 is to be paid from the trust account of Bradley & Bray to Mills Oakley Lawyers for release to the Applicant after payment of any outstanding fees.
Pending further Order the balance of funds retained in the trust account of Bradley & Bray to be invested in such form as is considered most appropriate to gain the best return, subject to such investment being in accordance with authorised investments for trust accounts pursuant to Queensland law.
No Order to be made pursuant to paragraph 2 of the Applicant’s Application in Form 2 filed 20 June 2007.
Costs reserved.

IT IS NOTED that publication of this judgment under the pseudonym WGOC & GH and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1742/2000

WGOC

Applicant

And

First Respondent

And

GJK
Second Respondent

REASONS FOR JUDGMENT

On 1 July 2005 I made orders which read in part:
“23.That [EGOC] do all such acts and things and sign all such documents required by or prepared by the Wife as may be required to transfer to the Trustee with Power of Sale as referred to in paragraph 25 hereof, all of his interest in the property known as Unit [A] being Lot […] on Building Unit Plan […], County of [W], Parish of [N], Title Reference […] to be held on trust for sale.
24.That if [EGOC] does not comply with Order 23 hereof within 7 days of being required to do such…

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.

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Details

Case: [2007] FamCA 1103
Decision Date: 2 August 2007

CaseChat Overview and Summary

In the matter of WGOC & GH and Anor (No. 2), Barry J of the Supreme Court of Queensland considered applications concerning the disbursement of funds held in trust by Bradley & Bray Solicitors. The dispute involved the allocation of these funds between various parties, including Legal Aid Queensland, the First Respondent, and the Applicant, and related to costs orders made in previous proceedings.

The court was required to determine the appropriate distribution of funds held in the solicitor's trust account, specifically addressing the payment of costs orders in favour of the Third Respondent, the retention of funds pending the Full Court's determination on the Wife's costs, and the release of funds to the Applicant after the payment of outstanding fees. The court also considered an application made by the Applicant in Form 2 filed on 20 June 2007.

Barry J ordered the immediate disbursement of $792.00 to Legal Aid Queensland in satisfaction of previous costs orders. A sum of $141,226.25 was to be transferred from Bradley & Bray's trust account to Butler McDermott's trust account, to be held pending the Full Court's decision on the Wife's costs of the proceedings. Butler McDermott was granted liberty to invest these funds to achieve the best return, provided the investments complied with Queensland law for trust accounts. Furthermore, $139,495.12 was to be paid from Bradley & Bray's trust account to Mills Oakley Lawyers for the Applicant, after deduction of any outstanding fees. The remaining balance in Bradley & Bray's trust account was to be invested similarly, pending further order. The court made no order pursuant to paragraph 2 of the Applicant's application, and costs were reserved.

Orders

Orders of the court

The amount of $792.00 be immediately disbursed to Legal Aid Queensland on account of the previous costs orders made in favour of the Third Respondent.

The amount of $141,226.25 be paid from the trust account of Bradley & Bray Solicitors to the trust account of Butler McDermott, lawyers for the First Respondent, such funds to be retained in the solicitor’s trust account pending the determination by the Full Court on the issue of the Wife’s costs of the proceedings (other than the appeal).

Butler McDermott be at liberty to invest the sum of $141,226.25 in such form as is considered most appropriate to gain the best return, subject to such investment being in accordance with authorised investments for trust accounts pursuant to Queensland law.

The amount of $139,495.12 is to be paid from the trust account of Bradley & Bray to Mills Oakley Lawyers for release to the Applicant after payment of any outstanding fees.

Pending further Order the balance of funds retained in the trust account of Bradley & Bray to be invested in such form as is considered most appropriate to gain the best return, subject to such investment being in accordance with authorised investments for trust accounts pursuant to Queensland law.

No Order to be made pursuant to paragraph 2 of the Applicant’s Application in Form 2 filed 20 June 2007.

Costs reserved.

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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