Power to order litigation funding

Power to order litigation funding

Rabkin & Edsall

RELEVANT LEGAL PRINCIPLES

9. An application for the payment to a party of a sum of money in interim proceedings requires the exercise of a discretionary power pursuant to ss 79 and 80(1)(h), ss 72 and 74, s 117 or possibly s 114 of the Act.^[1]
10. In Kyriakos,^[2] Finn and Strickland JJ held:

2. We acknowledge that it has been common practice in the jurisdiction when making an interim litigation funding order to provide that the final categorisation of funds provided pursuant to the order is to be determined at the final trial of the matter for which the funding was provided. However, such a provision does not negate the requirement to identify the source of power which is relied on for the making of the interim order (even though the nature of, or basis for, the interim order may later be changed). This is because, as Brereton J succinctly explained in Paris King Investments, it is “the source of power that determines the necessary preconditions and relevant considerations for making the order”.

11. In exercising the s 79 power I would need to be satisfied of the following matters:
    1. It would be just and equitable to make any order; and
    2. That having regard to such matters as may be relevant in s 79(4) it is appropriate to make an order.
12. An important consideration is whether such a payment could readily be recovered if it were found to exceed the entitlement of the party to whom it is made.
13. In exercising the s 74 power I would need to be satisfied of the following matters:
    1. That the applicant is unable to support himself adequately for a reason as identified in s 72 of the Act;
    2. That the respondent has the capacity to maintain the applicant as claimed; and
    100. That it would be appropriate to make a lump sum order.
14. In exercising the s 117 power I would need to be satisfied of the following matters:
    1. That there are circumstances that justify the Court making an order as to costs and that such an order would be just; and
    2. In considering what order, if any, the Court must have regard to the matters set out in subsection (2) of s 117 so far as relevant.
15. In exercising the s 114 power I would need to be satisfied of the following matters:
    1. Whether it is just or convenient to grant an injunction; and
    2. The balance of convenience.

17. On the evidence before me it is common ground that from the sale proceeds of B Street $120,244.62 was paid into a mortgage account in the respondent’s sole name. Annexure 2 to the applicant’s affidavit corroborates that to be the case. The respondent asserts this was a requirement of the Bank to secure other loans she had to the Bank. What is clear is that it reduced the then mortgage. It is unclear on the evidence before me whether this was a requirement of the bank.
18. I am not satisfied that this sum is a fund available to the respondent or that she has a re-draw facility on this loan account.
19. I am unable to be satisfied that it would be proper to make an interim property order and, in particular, it would be unlikely that the funds would be able to be recovered as the applicant indicated an intention to spend them on legal fees.
20. As I have no evidence before me about the current financial circumstances of the applicant I am not satisfied that he is unable to support himself adequately and even if I were able to be so satisfied I could not be satisfied that he should receive a lump sum payment.
21. I am not satisfied that it would be just to make a costs order in favour of the applicant.
22. I can see no basis to issue a mandatory injunction requiring the payment of the funds to the applicant.