The importance of having your financial affairs at or soon after separation

Brett recently had a case where a client received what Brett perceived to be “unjust judgment”.  In his view, there were clear errors in the Judgment and that if our client appealed, she would have had good prospects of being successful.

The matter was a property settlement matter and had been a difficult and litigious matter from the outset.

However, just because the Judgment in Brett’s view was a bad/shocking Judgment and not correct at Law, it did not mean that our client should appeal because we had to consider the following factors:

1. It is extremely difficult to be successful on Appeals and just because we though the Judgment was wrong, it does not mean that the Appeal would definitely be successful;

2. Appeals are expensive and if our client lost the Appeal, she would be liable for the costs of the other party in most cases;

3. Even if we were successful with the Appeal, it is likely, that the Appeal Court would not substitute it’s own Order, but would Order a Re-Trial;

4. We may get a Costs Order against the other party, but it would not be for reimbursement of all the client’s legal costs, more than likely it would be a Cost Certificate and these Certificates award paltry amounts to clients;

5. Our client would have to endure the matter restarting again before a different Judge and it would have taken a further 12 to 18 months to get to a Hearing and then await a further Judgment and uncertain outcome.

All of the above, needed to be assessed objectively, despite Brett’s frustration at the decision, when advising our client on what to do.

The point is that in these cases, litigation can produce some unjust outcomes, but the commercial realities make it untenable to appeal or proceed further in the matter.

Of course, there are exceptions to this where the size of the Estate is so substantial that Appeals are worth the risk.  However, in a lot of cases for the average “mum and dad”, the amount of money spent at an Appeal and in the Re-Trial process, with still an uncertainty of further outcome, mean that in a lot of cases, the decision not to appeal is due to commercial reasons, rather than legal reasons.

In this particular case, Brett did have a look back and think about how he could have avoided a Trial, but it was extremely difficult again – it was one of those few matters where parties are polarized in their dispute.  However, offers were made which were not far away from the ultimate outcome and in hindsight, Brett wishes he had pushed his client to offer that extra bit of money that could have perhaps settled the matter or at least protected them when it came to a Costs argument at the end.

The above does not mean you should settle at all costs and that you mediate and settle regardless of outcomes.

In our view, we always like to achieve the best outcomes for the client in the circumstances of their case, and usually that is achieved through mediation and negotiation and sometimes litigation.  The main lesson in Brett’s view to learn, is that Appeals, in the majority of cases, are simply not going to be worth the effort time and cost and sometimes it is better to walk away with your tail between your legs.