FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yanez & Yanez (No 2) [2024] FedCFamC1F 166
File number(s): PAC 5502 of 2018 Judgment of: ALTOBELLI J Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – COSTS – SOLICITOR’S LIEN – Where the wife seeks indemnity costs against the husband – Where the husband’s former solicitor seeks a lien for unpaid costs due to him by the husband – Indemnity costs ordered in favour of the wife – Where both the wife and the husband’s former solicitor seek to recuperate their costs from the husband’s entitlement held in the wife’s solicitor’s trust account – Where the entitlement is less than the monies owed to the wife and the husband’s former solicitor – Where it is unlikely the husband will pay any outstanding monies – It is ordered that the husband’s former solicitor be paid first from the entitlement and the wife have a charge as against the reminder. Legislation: Family Law Act 1975 (Cth) ss 79, 90AA, 114, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Bhatt & Acharya (Costs) [2017] FamCAFC 71
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Edwards & Peters [2014] FamCAFC 51
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Another (2005) 33 Fam LR 123; [2005] FamCA 158
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1998] FCA 364
In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Lenova & Lenova (Costs) [2011] FamCAFC 141
Macura v Sarasevic (No 2) [2019] NSWSC 1621
Marsh & Marsh (2014) 52 Fam LR 395; [2014] FamCA 361
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28
Twigg v Keady (1996) FLC 92-712; [1996] FamCA 115
Yanez & Yanez [2023] FedCFamC1F 284
Division: Division 1 First Instance Number of paragraphs: 77 Date of last submission/s: 31 October 2023 Date of hearing: Heard on the papers Place: Sydney Solicitor for the Applicant: Coleman Greig Lawyers The Respondent: Litigant in person Solicitor for the Intervener: N Lawyers ORDERS
PAC 5502 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YANEZ
Applicant
AND: MR YANEZ
Respondent
N LAWYERS PTY LTD
Intervener
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.The parties do all things necessary to cause the respondent husband’s (“the husband”) debt to N Lawyers Pty Ltd (“N Lawyers”) for outstanding legal fees, in the sum as agreed or assessed, to be paid from the husband’s entitlement pursuant to Order 6 of the orders made on…
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- Yanez & Yanez (No 2) [2024] FedCFamC1F 166
- Case
- [2024] FedCFamC1F 166
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether indemnity costs should be awarded to the wife, how to manage the payment of the husband’s legal fees to N Lawyers, and how to allocate the husband’s entitlement in the wife’s solicitor’s trust account to satisfy both the wife’s indemnity costs and N Lawyers’ lien. The court considered the respective claims, the likelihood of the husband paying further sums, and the practicalities of enforcing payment.
The court ordered that the husband’s debt to N Lawyers be paid first from his entitlement. If the husband and N Lawyers could not agree on the sum owed within 14 days, Mr P from N Lawyers was to apply for his costs to be assessed. The wife was to be paid her indemnity costs within 60 days. The wife was also granted a charge against the husband’s entitlement, subject to the other orders, and she could reduce the sum payable to the husband accordingly. All other applications were dismissed.
Orders
Orders of the court
PAC 5502 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS YANEZ
Applicant
AND:
MR YANEZ
Respondent
N LAWYERS PTY LTD
Intervener
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1. The parties do all things necessary to cause the respondent husband’s (“the husband”) debt to N Lawyers Pty Ltd (“N Lawyers”) for outstanding legal fees, in the sum as agreed or assessed, to be paid from the husband’s entitlement pursuant to Order 6 of the orders made on 18 April 2023.
2. If the husband and N Lawyers fail to reach agreement in relation to the sum referred to above within 14 days of the date of these orders, Mr P from N Lawyers is to forthwith thereafter apply for his costs to be assessed and keep the applicant wife (“the wife”) advised of the progress of this process at all times.
3. Within 60 days of the date of these orders, the husband is to pay the costs of the wife in the amount of $302,772.
4. The wife be granted a charge as against the husband’s entitlement pursuant to Order 6 of the orders made on 18 April 2023 subject to Orders 1 and 2 of these orders, and she shall be permitted to reduce the sum payable to the husband pursuant to Order 3 of these orders.
5. All other applications before the Court are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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