Gairola & Lakmali and Ors [2020] FamCA 55
The case of Gairola & Lakmali and Ors [2020] FamCA 55 is a decision of McMillan J heard on 14 January 2020.
The applicant, Mr Gairola, did not appear and the first and second respondents appeared in person. The third respondent, B Lawyers, appeared with counsel, but acting on their own behalf.
This case involved an application pursuant to section 79(10) of the Family Law Act in which B Lawyers sought to intervene in the property settlement proceedings.
There was an Application in a Case before Her Honour by the husband’s former solicitor seeking to intervene in the proceedings to secure and ultimately affect payment of outstanding costs.
The solicitors had a judgment in the County Court of Victoria with respect to the payment of those costs.
There were difficulties by the applicant in effecting service of the County Court of Victoria proceedings on the husband. The lawyer obtained an order for substituted service. The husband was served with the Writ and Statement of Claim. The husband did not file a Defence and did not otherwise participate.
The wife’s solicitor is also a party to the proceedings.
In this case, at paragraph 7:
“The applicant also believed, as advised or promised by the husband, that his legal fees would be paid out of monies held in trust on behalf of the husband and the wife upon application to the Court for part property settlement.”
The wife’s solicitor had obtained judgment in the Magistrates Court of Victoria in August 2019.
At paragraph 11:
“The orders that are sought by the second and third named respondents are to secure payment of the outstanding costs, pending the further determination of this matter. The proposed order is by way of an injunction restraining the husband and the wife from withdrawing funds from a bank account in their joint names. That account requires them both to sign for any withdrawal.”
At paragraph 19:
“The Court has an obligation to bring proceedings to an end and in my view, orders need to be made which keep this matter on track, moving towards a hearing and some finality in the event that the parties do not reach agreement. Even more so where there are third party creditors who have not been paid whose claims must also be addressed, the orders that are being made not determining whether or not the second and third named respondents will be paid, or from what source. The orders I propose to make, which will include an order restraining the parties from dealing with a sum sufficient to cover the judgment debts and the possibility of any further costs, in the sum of $145,000, will protect the claims of the third parties and will prevent husband and wife reaching an agreement, settle the matter, leaving their costs unpaid.”