DE FACTOR EX SEEKS A LITIGATION FUNDING ORDER AGAINST HIS RICH EX
Balaskas & Stratos [2021] FCCA 100 (28 January 2021)
This is an interim property proceeding where the applicant seeks a litigation funding order against the respondent since there is a significant financial disparity between the parties.
Facts:
The parties in the current proceeding were in a de facto relationship for approximately 10 years. Since separation, the Applicant has continued to be financially supported by the Respondent who has funded his accommodation, paid some legal costs, provided a car and made ongoing weekly payments.
The Applicant’s Minute of Orders sought That the sum of $150,000.00 be advanced to the Applicant towards his legal costs and expenses, which will be brought into account by the Court as a partial property settlement upon the final resolution of these proceedings, or in the alternative. The respondent sought such order sought by the applicant be dismissed.
The Applicant contends that the conduct of the Respondent at the early stage of the proceedings together with the overwhelming financial imbalance in the parties’ capacity to engage lawyers and prosecute their case, supports a costs order being made pursuant to s117(2). To do otherwise would be unjust and inimical to the interests of justice. the Applicant has virtually no financial resources (other than a second hand boat). He is unemployed and receives and has no capacity to borrow.
It is submitted by the respondent that the payments already made to the Applicant, along with the assets and “resources” available to the Applicant would prevent the Court from being satisfied that there should be any order compelling the Respondent to pay any more of the Applicant’s legal expenses, given that he would have already received the benefit of a “de minimus award”. The Applicant must establish that there are no “real prospects of obtaining justice unless the order sought is made”. It is submitted that the Applicant has not discharged this onus.
Issue: Should the court grant the litigation funding order n favor of the applicant?
Law:
- Family Law Act 1975 SS.79, 80(1), 117(2A)
Analysis:
The critical question, therefore, is whether the applicant has “any real prospects of obtaining justice unless the order sought is made”. In the court’s view, it is just and equitable for a legal funding Order to be made.
The Applicant is embroiled in litigation in which there is currently no litigiously level playing field. While the Court is not, and cannot, engage in social engineering in any relevant respect, it must ensure, so far as is possible as a matter of justice (if not procedural fairness) in accordance with principle, that both parties are justly able to have their property dispute resolved either by mediation, or by arbitration, or by the Court. The litigation funding Order sought by the Applicant seeks to ensure that this occurs.
Conclusion: The Court orders that litigation funding Order be made in the Applicant’s favour in the sum of $110,000
