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Family Law Team succeeds in Supreme Court Interim Application

Success in Supreme court family matter

In March 2014 we assisted our client (the defendant) to successfully defend a claim for division of property following the breakdown of a De Facto relationship some 5 years earlier.

The Trial Judge found in favour our client, accepting the facts and submissions on the law, as strategised and fought for by our client's legal team.

The Appellant (our client's former partner) then filed a Notice of Appeal in the Supreme Court of South Australia seeking to Appeal the Judgment. Our client instructed us to defend this Appeal.

We had two major things to consider:

  1. We were concerned that our client had already incurred significant costs on fighting the District Court claim and that he would now be required to pay additional fees in order to defend the Supreme Court Appeal, despite having succeeded in the District Court trial of the matter. We wanted to protect our client from further legal fees; and
  2. We were focused on giving our client the best chance of successfully defending the Appeal.

The Andersons Family Law team was given the task of determining who would be the best legal counsel to advise us on the Appeal matter and to represent our client in the hearing. In order to do this we spoke to a number of barristers and members of our own team.  Ultimately we engaged Senior Counsel Mr Jonathon Wells Q.C. and Mr John McGinn on behalf of our client.

We tried to negotiate a withdrawal of the Appeal in order to save all parties from further legal costs and we otherwise sought agreement from the Appellant with regard to securing our client's legal costs. When our communications on this were ignored by the other party we knew that we would have to take some action in the Court.

On the advice of Counsel we filed an Application for security for costs on behalf of our client. The purpose of the Application was to ask the court to order the Appellant to pay money into court before she would be allowed to go on with her Appeal. Then if our client successfully defends the Appeal, in the future, the money she has paid will go towards his costs of having to defend that action. As part of the same Application we asked the court to strike out a number of paragraphs of the Notice of Appeal in order to limit the grounds upon which the Appeal could be based.

We attended to the substantial work involved in supporting our client's Application by obtaining the necessary transcript pages from the court and taking his extensive instructions. We helped Counsel to draft complicated Affidavits and we ensured that the court received that material promptly and prior to the hearing of the Application. We also assisted Counsel to prepare the submissions that would be made to the court at the hearing and attended the hearing on behalf of our client along with Counsel.

On 4 July 2014 the Supreme Court granted our client's Application for security for costs and agreed to strike out 3 of the 4 paragraphs that we had requested be struck out from the Notice of Appeal. This means that the Appellant must now sort out payment of substantial monies for security for our client's costs before they will be allowed to continue with their Appeal and they will also have to reconsider their grounds of Appeal.

We are confident that with this successful result our client will have a better chance of defending the Appeal and recovering some of the legal costs that are incurred in doing so. We are pleased that the effort and experience of our Family Law team along with the advice of knowledgeable Counsel that we engaged in the matter has enabled us to achieve this positive result for our client.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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