Articles & Cases

Van der Linden & Kordell [2010] FamCAFC 157 – the Husband appealed against final property settlement orders after previous final property settlement orders were successfully appealed by the husband and the matter was remitted for rehearing. The wife died between the making of the first final orders and the determination of the first appeal. The proceedings were between the Husband and the Wife’s deceased estate. A significant feature of the appeal was the effect of the death of a party to a marriage on the matters to be considered in s 75(2). The trial judge assessed the Husband as being entitled to a s 75(2) adjustment as to 10%. Another issue which arose was related to the Wife’s superannuation entitlements. The Wife’s superannuation entitlements were paid to her daughter after he death. The Husband sought an adjustment under s 75(2)(o) in his favour or the superannuation payments ought to have been added back. The Full Court determined that (a) there was no error in the trial judge’s assessment of the “s 75(2) factors” and (b) the superannuation interest never formed part of the estate. The appeal was dismissed.

Drysdale & Drysdale [2011] FamCAFC 85 – the Husband appealed against an interim order requiring him to pay the Wife periodic spousal maintenance. Inter alia, the Husband contended that it was fatal to Wife’s application for periodic spousal maintenance because she neglected to complete Part N of the Financial Statement relied upon her. Coleman J held that it was not fatal to an interim application for spousal maintenance if the Applicant failed to complete Part N of the Financial Statement. However, such neglect was fatal if an order for spousal maintenance was sought on a final basis. The appeal was dismissed.

Lester & Lester [2014] FamCAFC 209 – the Federal Magistrate assessed the Wife’s contributions assessed at 52 per cent and under s 79(4)(d)-(g), including in particular s 75(2) of the Family Law Act 1975 (Cth), she received a further adjustment of 25 per cent.  The Husband received net assets valued at $222,687.61, of which his remaining superannuation interest represented $197,860.61. From a property pool valued at $968,207 the Wife received 77 per cent (including virtually all the non-superannuation property) compared to the Husband’s 23 per cent which is overwhelmingly constituted by superannuation. The Full Court found no error in respect of the assessment of contributions but found error in the assessment of the “section 75(2) factors”. In particular, there was a failure to give adequate reasons and he failed to consider and make findings which could lead him to be satisfied that the ultimate outcome reflected a proper exercise of his discretion. The Full Court re-exercised discretion; the parties’ property was be divided approximately 61 per cent to the wife with the remaining 39 per cent to him (being total assets of $380,827 (including $356,000 in superannuation).

Cerny & Seidler [2019] FamCAFC 257 – The Wife filed an Application in a Case (after a contested property hearing) seeking the Husband pay a proportion of her costs in relation to the parenting proceedings and the parenting and financial proceedings, her total costs being $384,182.54. The Primary Judge found there was an evidentiary deficiency in relation to this amount, and made a global order in the Wife’s favour for $80,000. This matter settled during the hearing on terms proposing the appeal be allowed and the quantum of the costs order reduced to $35,000. However, the Full Court addressed one ground of appeal and found that the Primary Judge erred in making the costs order in the absence of discernible evidence which would have justified the amount of $80,000. Their Honours would have allowed the appeal on that error alone.

Zuen & Lhao [2020] FamCAFC 84 – On appeal to the Full Court the Mother appealed parenting orders. The appeal was allowed and the matter was remitted for rehearing on the grounds there was an unacceptable risk of harm and the trial Judge’s reasons did not adequately demonstrate he understood the psychological harm to the child if the child remained in the Father’s primary care, and failing to deal with the Mother’s evidence of family violence perpetrated against her by the Father, which was relevant to the question of suitability of the violent parent as a role model.

Padanowska & Padanowski [2020] FamCAFC 97 – The Mother appealed particular interim parenting orders including a direction to attend upon a psychiatrist to discuss text messages which the Mother denied sending. The Full Court found the trial judge during proceedings made a finding of fact that the Mother had sent these text messages, and this finding was diametrically inconsistent to any statement made during his ex-tempore judgment which may have implied the finding might be a subject of rehearing. The Full Court granted the appeal and remitted the matter to the Federal Circuit Court of Australia for rehearing.

Nghiem & Alberts and Ors [2020] FamCAFC 187 – The appellant Mother launched an appeal on the basis that the primary judge erred in failing to disqualify himself when asked to do so by the applicant. Moreover, the appellant challenged the adequacy of the primary judge’s reasons given for the judgment. This appeal was made based on comments made the primary judge regarding a position held by the appellant during the course of proceedings. The Court found that appellant was unable to succeed on their appeal based on the comments made by the primary judge, as the primary judge did not deviate from the course of deciding the case based on its merits. As noted by the Court, the primary judge’s comments did not qualify as an impermissible indication of prejudgement of the merits of the case that would result in disqualifying the primary judge from the proceedings. Nor did the primary judge fail to adequately assess the evidence before him nor in providing adequate reasons for the decision.

Nimitan & Nimitan [2014] FamCA 221 – after long and protracted proceedings, the Husband sought an order that the Wife pay his costs on the indemnity basis. The Wife’s position was that each party should bear their own costs. Aldridge J considered the conduct of the parties and the nature of the offers exchanged between and determined that each party should bear their own costs. (BTW, the Husband filed a Notice of Appeal but subsequently abandoned the appeal).

Kaye & Allison [2019] FamCA 548 – The Mother sought to relocate the child’s residence to the USA. Johnston J found that allowing the proposed relocation to take place would likely cause an improvement in the mother’s mental health and allow her to parent the child in the most effective capacity.

Padanowska & Padanowski (No. 3) [2020] FCCA 3451 – These proceedings concerned an injunction sought by the Applicant to restrain the solicitor (Second and Third Respondents) of the First Respondent from continuing to act in the proceedings. This application was brought during the circumstances of property and parenting proceedings, in which the First Respondent sold the family home, and used the proceeds in part, to pay outstanding fees to their solicitors, without the knowledge and consent of the Applicant. The circumstances were such that the parties anticipated applications seeking orders regarding the distribution of the proceeds of the sale of the property. The solicitors prepared the application for the First Respondent regarding the distribution of the proceeds of the sale however sought to benefit from the actions of the First Respondent in distributing the funds without an order, or knowledge and consent of the Applicant. Moreover, the solicitors accepted the payment from the First Respondent, even after receiving notice of the Applicant’s rejection to the disbursal of the funds. The Court viewed this behaviour as contrary to the ethical standards required of solicitors to the administration of justice. The Court ordered that the solicitors be restrained from acting for and on behalf of the First Respondent in the proceedings.

Tax Practitioners Board v Su [2014] FCA 731 –  the applicant, the Tax Practitioners Board (the Board), seeks two declarations against and the imposition of a pecuniary penalty on the respondent in respect of contraventions of s 50-20 of the Tax Agent Services Act 2009 (Cth).  The respondent admitted that he had contravened s 50-20 by, as a registered tax agent, making statements to the Commissioner reckless as to whether the statements were false, incorrect or misleading in a material particular. In accepting information from intermediaries and preparing the income tax returns, the Respondent never did anything to attempt to verify the identities of the taxpayers or the accuracy of any of the information provided to him and included in the returns The Respondent’s conduct, in lodging false returns, has resulted in loss being occasioned to the Commonwealth of Australia and the relevant taxpayers. The Respondent’s conduct resulted in the affairs of genuine taxpayers having been compromised by the fraudulent use of their TFNs. The Respondent was fined $70,000 payable over seven years.

Granger v A.C.N. 165 098 617 Pty Ltd [2016] FCA 47 – a director invalidly appointed a voluntary administrator to a company. The other director did not ratify the resolution appointing the voluntary administrator. Neither director opposed the Court making orders to regularise the appointment but opposed the purported administrator in having his costs of the application paid out of the assets of the company. Jagot J held that the administrator was not entitled to his costs. Her Honour reached the view that the administrators should not have their costs of this application paid out of the assets of the company. It was necessary and appropriate that the administrators make the effort to obtain the other director’s consent to the appointment before proceeding with the administration in circumstances where they must have had that director’s contact details and were able to contact him almost immediately after the meeting. Further, the administrators must be taken to have known at the time of their appointment that the appointment was invalid. They could and should have found out from the company’s constitution, which they managed to obtain one day after the appointment, that a resolution to appoint administrators had to be approved by both directors and they could and should have contacted the director to obtain his consent before the appointment was purported to be effected. That is, they should not have simply accepted at face value any information from one director about difficulty in contacting the director.

Boensch v Donovan Electrical Services Pty Ltd [2014] NSWCA 453  – The Appellant sought leave to appeal the decision of Campbell J in the NSW Supreme Court. The Appellant had sought a judicial review of three decisions of the Consumer Trading and Tenancy Tribunal, namely an order to pay to the Respondent a sum of money, and refusals of applications for rehearing under ss 68(1) and 68(9A) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The Court of Appeal found the Appellant did not demonstrate reasonable prospects of success on appeal, and the sum involved was far less that the threshold of $100,000 beyond which an appeal as of right lies.

Gilles v Palmieri [2017] NSWCA 320 – An appeal of proceedings from the District Court of NSW. The Appellants, a law firm, had commenced proceedings for recovery of costs. The Court of Appeal found that that the primary judge erred in concluding that the 2004 Act applied to the assessment of the Applicants’ costs where the applicable provisions were contained in the 1987 Act. The Court allowed the appeal and set aside the orders.

Brighten v Traino [2019] NSWCA 168 – This appeal related to an incident on the sidewalk outside a licensed venue where the Appellant was stuck by the Third Defendant in the course of a melee between security, an ejected patron of the bar, and the Third Defendant. The District Court proceedings were dismissed and the Appellant appealed. The Third Defendant pleaded self-defence, however Court of Appeal allowed the appeal against the Third Defendant only. The plurality determined the Appellant’s grabbing of the Third Defendant was not a battery, Third Defendant had not acted in self-defence and the Civil Liabilty Act did not apply as he had intentionally struck the Appellant. They further reasoned the First and Second Defendants had not breached their duty of care to the Appellant due to insufficient warning the Third Defendant was to act as he did.

Price v Price [2020] NSWCA 312 – This appeal concerned an application for leave to appeal from a costs order make by Pembroke J on the basis that His Honour erred in his application of r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). In the judgment, the Court provides an explanation of what an “event” meant for the purposes of r 42.1 of the UCPR which prescribes that, unless the court considers dome other order is appropriate, “costs follow the event”. For an “event” to take place, there must have been a contest in which the applicant for the costs has succeeded. This “event” did not take place in this case as the orders for costs were made by consent, and thus r 42.1 of the UCPR did not apply. The Court granted leave to appeal, and set aside the costs order made by Pembroke J.

Mathew CHAINA & Ors v THE PRESBYTERIAN CHURCH (NSW) PROPERTY TRUST & Ors (No 4) [2011] NSWSC 524 – The Applicant’s to the Notice of Motion filed in this case had commenced various proceedings in relation to the death of a schoolboy some years earlier (a brother and son). The solicitors representing the plaintiffs and defendants to those earlier proceedings, and the Applicants (excluding Mathew and Jean-Pierre) entered into a tripartite agreement. The Applicant’s the commenced a negligence suit against their former solicitors and filed a Notice of Motion to this Court seeking production of their documents. The Judge ordered production of the documents to the Applicants, on condition of the provision of documents.

Fitzgibbons v Shaftsbury Pty Ltd [2011] NSWSC 525 ; (2011) 16 BPR 30,837 – These interlocutory proceedings concerned a caveat about to lapse and the Plaintiff applied for interlocutory orders to extend the caveat. The Plaintiff has lodged the caveat over a property which the Defendant was the registered proprietor of, and his mother the director of the Defendant company. The Plaintiff alleged various conversations and arrangements amounted to him having an equitable interest in a portion of the property. His Honour found that the caveat was not ‘too wide’ as the portion to which he alleged he held an interest in had not been proposed, approved, or subdivided. He further found that the caveat had substance on the evidence despite the Defendant’s arguments raising certain failures of the caveator in preparing the caveat, predominantly failing to sufficiently identify the part of the land in which interest is claimed.

In the matter of Solar PV Commercial Pty Ltd [2013] NSWSC 458 – The Plaintiff commenced proceedings in the NSW Supreme Court under ss 459H(1)(a) and 459J(1)(b) of the Corporations Act 2001 (Cth) to set aside a Creditor’s Statutory Demand issued by the Defendant arising from outstanding invoices for goods sold and delivered, first assigned to the Plaintiff. The Plaintiff subsequently reassigned this debt to their other company. His Honour found that this transfer was not a new contract, but a novation of the original contract. His Honour ultimately found a ‘genuine dispute’ did exist in relation to the debt, and the order must be set aside under s 459J(1)(a).

Zhu v Snell [2014] NSWSC 468 – The Plaintiff sought specific performance of contract for the sale of land, purchased from the Defendant. The Defendant terminated the agreement the following day. Both parties had conflicting recollections of the events surrounding the execution of the contract and subsequent termination. The Defendant alleged that some time prior to executing the contract, he and is partner, Ms Jiang, executed a tenancy agreement where she leased part of the property from him. The Judge made a finding that it was probable that the Defendant and partner had not executed the agreement when they said they did, and had done so after the execution of the contract for sale of land, and so the Plaintiff did not have notice of Ms Jiang’s equitable interest as none existed. His Honour determined that even if Ms Jiang did have equitable interest in the property, though the Judge found she likely did not, it was in any event postponed to the Plaintiff as he had equitable interest as purchaser. His Honour ordered specific performance of the contract for the sale of land as damages would not be an adequate remedy.

In the matter of Speedy Ventilation Pty Limited [2016] NSWSC 373 – A winding up application filed by the Plaintiff which sought to appoint a liquidator of the company, the First Defendant. The Second Defendant consented to the application other than in respect of costs, however the application required the Court’s satisfaction that the statutory discretion be properly exercised in favour of the order sought. There had been a deterioration in the relationship between the shareholders, an associated deadlock in the management of the Company, and a filed buy-out attempt. The company was not insolvent but His Honour made reference to relevant authorities and determined no principle existed which made the winding up of a solvent company inappropriate. His Honour found that under those circumstances it was just and equitable to wind up the company.

Malouf v Constantinou [2017] NSWSC 923 – These proceedings concerned security for costs under a costs agreement between the Plaintiff (Solicitor) and the Defendant (the Client). The Plaintiff’s costs agreement included a charge over all of the Defendant’s current and future property in very similar terms to the security provisions in the costs agreements and that payment was to be made at the conclusion of the Client’s family law proceedings. The Plaintiff had also entered into a deed of charge with the Defendant and with the Defendant’s parents (as guarantors) in respect of the Defendant’s property and two properties owned by the Defendant’s parents. The Plaintiff had become aware of the specific properties owned by the Defendant and his parents in the course of taking preliminary instructions concerning the family law proceedings in which the Plaintiff was to be retained to act for the Defendant. The Court held that, in those circumstances, the Plaintiff was in a position of conflict between his own interest in obtaining security for his fees and his obligation to act in his Defendant’s best interests. The Court therefore accepted the concession made on behalf of the Plaintiff that the fiduciary relationship of Plaintiff and Defendant obliged the Plaintiff to provide an explanation of the terms of the costs agreement, deed of charge and other related documents to the Defendant before the Defendant entered into those documents. Given that the Solicitor had repudiated the costs agreement and that none of his fees were due and payable (save and except for some minor disbursements), the Solicitor’s claim was dismissed. Parker J expressly refrained from considering whether a solicitor stipulating for security in other circumstances is in a position of fiduciary conflict. However, his Honour referred to dicta of Windeyer AJ in M J Leonard Pty Ltd v Bristrol Custodians Ltd (in liq) [2013] NSWSC 1734 at [52]–[53] to the effect that a fiduciary conflict arises whenever a solicitor seeks security from the client, even at the inception of a retainer.

Sattar v Boral Constructions Materials Group Limited [2018] NSWSC 196 – In this case, the Appellant sought to “reagitate” her claim and failed to identify any arguable points on her appeal from the decision of the Local Court. This was despite having ample opportunity to do so. Her Honour refused leave to replead the summons and dismissed the amended summons pursuant to UCPR 13.4 and UCPR Rule 50.16A finding the appeal incompetent.

Gilles v Palmieri [2018] NSWSC 350 – Judicial review of a costs assessor’s decision in relation to numerous sets of proceedings concerning the recovery of solicitor’s costs. The Plaintiff in this case sought relief in the nature of certiorari. The costs assessor returned the costs application to the manager of costs assessments on the basis he could not determine the application as he did not have jurisdiction to deal with it. The Court ordered the costs assessor’s decision be quashed, and remitted the matter to the manager of costs assessment.

Gilles v La Rosa [2018] NSWSC 920 – These proceedings concerned security for costs under two costs agreements between the Plaintiff (Solicitors) and the Defendants (the Clients). The Plaintiff sought a declaration from the Court that the Defendants had charged their interest in their property in favour of the Plaintiffs, pursuant to the Second Agreement. The Defendants argued that the Second Agreement was entered into under undue influence and therefore the agreement and the clause regarding security for costs was void. The Court noted the presumption that a solicitor is in a relationship of undue influence with their client, which can be rebuttable with evidence that the client was provided with full informed consent. Moreover, if the solicitor was in the position by acting for the client, to gain information regarding that client’s property, the use of that information to take security and lodge a caveat in protection of costs may breach the solicitor’s fiduciary duty. Ultimately, the proceedings were dismissed by reason of the Clients having a mutual debt exceeding the value of the Solicitors’ security in the subject property which arose from an adverse costs order. The Solicitors appealed from the costs decision but that appeal was dismissed.

Price v ACN 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers [2020] NSWSC 584 – The Plaintiffs commenced proceedings against the First Defendant, their former solicitors in relation to security provisions, contained in their Cost Agreements to separate family law proceedings, granting the First Defendant an equitable charge over the First Plaintiff’s real properties. The First Defendant sought to rely on those provisions when its tax invoice remained unpaid: firstly, they appointed a receiver (the Second Defendant in these proceedings) and secondly, they refused the Plaintiffs’ request for their files, exercising a perceived lien over the files as security for payment. Her Honour ultimately granted interim relief to the Plaintiffs on the basis that, inter alia, the provisions were never properly explained to the Plaintiffs, who were favoured by the balance of convenience. Her Honour ordered the Defendants be restrained from acting in reliance on particular provisions of the Cost Agreements, or the Deed of Arrangement as between the First and Second Defendants.

Council of the Law Society of NSW v Spinak [2017] NSWCATOD 184 – The Law Society of NSW asserted the Respondent, Mr Spinak, engaged in conduct which amounted to professional misconduct. The Respondent had entered into a tripartite agreement with three clients and their former solicitor, and gave certain undertakings to that solicitor, which all included an obligation for the Respondent to retain sufficient funds in his trust account to meet the legal costs and disbursements of the clients’ former solicitor, which the Applicant say he breached. The Respondent made certain concessions and entered into an Instrument of Consent, containing and Agreed Statement of Facts. The matter proceeding to hearing before the Tribunal. The Respondent was found guilty of professional misconduct, reprimanded, fined $2,000, and ordered to pay the Applicant’s costs. However, having regard for the negotiations between the parties in respect of the fine, and in consideration of the Respondent’s actions, inter alia, his insight into his conduct, contrition, and prompt payment to the former solicitor upon being served with the sum of the fine.