FAMILY COURT OF AUSTRALIA
| ZENG & JING AND ANOR | [2020] FamCA 507 |
| FAMILY LAW – PROPERTY – Interim – Where the husband seeks a litigation funding order against the wife and/or her mother – where the husband says he does not have access to sufficient resources to fund his litigation and asserts that the wife unilaterally transferred assets of the marriage to her mother – where the wife opposes the husband’s application and seeks orders that a property owned by the parties in China be sold or mortgaged to fund both parties’ litigation costs – where the wife and her mother deny the husband’s interest in the properties transferred to the wife’s mother - where all parties make allegations of inadequate disclosure against each other – where it is found that the wife, whose legal costs are being funded by her mother, and her mother are in a position of greater financial strength than the husband – where it is found that the husband is not in a position to fund his own litigation costs and has at least an arguable case for substantive relief which deserves to be heard at a final hearing – where the circumstances of this case justify the making of litigation funding order under s117(2) of the Family Law Act 1975. |
| Family Law Act 1975 (Cth) Evidence Act 1996 (Cth) |
| Aiden Shipping Co Ltd and Interbulk Ltd [1986] AC 965 Atkins & Hunt [2018] FamCA 14 Barro & Barro (1983) FLC 91-300 Bing & Bing [2007] FamCA 418 Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 Breen v Breen (1990) 65 ALJR 195 Forlan & Forlan [2016] FamCA 469 Gabel & Yardley (2008) FLC 93-386 Harris & Harris (1993) FLC 92-378 Hogan & Hogan (1986) FLC 91-704 In the Marriage of Collins (1985) FLC 91-603 In the Marriage of McAlpin (1993) FLC 92-421 Iphostrou & Iphostrou [2011] FamCA 20 Knight v F P Special Assets Ltd (1992) 174 CLR 178 Kyriakos & Kyriakos (2013) FLC 93-528 Moroni & Moroni [2014] FamCA 664 Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 Peters & Giannopoulos [2018] FamCA 237 Re Z (No 4) (Fam C of A, Full Court, 6 March 1997, unreported) S v S : The Child Representative; Victoria Legal Aid : The Chief Commissioner of Police (1997) FLC 92-762 Salmon & Salmon [2019] FamCA 448 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 Zschokke v Zschokke (1996) FLC 92-693 | ||
| APPLICANT: | Mr Zeng | |
| RESPONDENT: | Ms Jing |
| SECOND RESPONDENT: | Ms Lao |
| FILE NUMBER: | MLC | 5795 | of | 2018 |
| DATE DELIVERED: | 25 June 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McEvoy J |
| HEARING DATES: | 9 August, 4 September and 25 November 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stoikovska SC |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Salamanca |
| SOLICITOR FOR THE RESPONDENT: | Carew Counsel |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Matta |
| SOLICITOR FOR THE SECOND RESPONDENT: | Sayer Jones |
Orders
Pursuant to s 117(2) of the
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- Zeng and Jing & Anor [2020] FamCA 507
- Case
- [2020] FamCA 507
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CaseChat Overview and Summary
The central legal issue before the court was the appropriate disposition of legal costs, specifically an order for the second respondent to pay a substantial sum towards the husband's legal expenses. The court was also required to determine the future conduct of the proceedings, including the dismissal of certain applications.
McEvoy J ordered that the second respondent pay $350,000 towards the husband's legal costs and disbursements, to be paid in instalments over a period leading up to and following the trial. The husband's solicitors were directed to maintain detailed records of these payments and their application. Liberty was reserved for all parties to argue the ultimate disposition of these funds at the final trial. Furthermore, the husband's Amended Application in a Case, the wife's Amended Response to an Application in a Case, and the second respondent's Response to Application in a Case were all dismissed. The matter was subsequently listed for a case management hearing.
Orders
Orders of the court
1.
Pursuant to s 117(2) of the Family Law Act 1975 (“the Act”) the second respondent pay or cause to be paid to the husband’s solicitors the sum of $350,000 to be applied towards the husband’s legal costs and disbursements incurred or to be incurred as follows:
(a) within 14 days, the sum of $100,000;
(b) within 14 days of the making of orders listing the matter for trial, the sum of $75,000;
(c) within 30 days of the date listed for the commencement of the trial, the sum of $175,000.
2.
The husband’s solicitors keep detailed records of all payments made by the second respondent pursuant to order 1 hereof and of all legal costs and disbursements paid with the funds provided by the second respondent.
3.
Liberty be reserved to all parties to argue the ultimate disposition of the moneys referred to in paragraph 1 hereof at the final trial of all applications.
4.
The husband’s Amended Application in a Case filed 8 July 2019 be otherwise dismissed.
5.
The wife’s Amended Response to an Application in a Case dated 6 August 2019 be dismissed.
6.
The second respondent’s Response to Application in a Case dated 22 July 2019 be dismissed.
7.
The matter be listed for a case management hearing at 3.30 pm on 20 July 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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