Atkins & Hunt (Security for Costs)

Case [2015] FamCAFC 66

FAMILY COURT OF AUSTRALIA

ATKINS & HUNT (SECURITY FOR COSTS) [2015] FamCAFC 66

FAMILY LAW – APPEAL – SECURITY FOR COSTS – Where the applicant husband seeks security for costs in the sum of $75,000 – Where it is not possible to conclude that the grounds of appeal are unmeritorious – Where the application lacks bona fides – Where there is potential that an order for security will stifle the appeal – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the application was wholly unsuccessful – Where the application lacked bona fides – Costs ordered in favour of the respondent wife.

Family Law Act 1975 (Cth) – s 117

Family Law Rules 2004 (Cth) – rr 19.05(2) and 22.53(3)

Gerber & Bradley (formerly Gerber) and Ors (Security for Costs) [2011] FamCAFC 206
Halsbury & Halsbury [2008] FamCAFC 170
Luadaka & Luadaka (1998) FLC 92-830
Palma & Caleffi and Anor (Security for Costs) [2011] FamCAFC 174
APPLICANT: Mr Hunt
RESPONDENT: Ms Atkins
FILE NUMBER: SYC 425 of 2012
APPEAL NUMBER: EA 171 of 2014
DATE DELIVERED: 30 April 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Strickland, Ainslie-Wallace & Kent JJ
HEARING DATE: 29 April 2015
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 4 December 2014
LOWER COURT MNC: [2014] FamCA 1076

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC
SOLICITORS FOR THE APPLICANT: Sexton Family Law
COUNSEL FOR THE RESPONDENT: Mr Weightman
SOLICITORS FOR THE RESPONDENT: Paltos Milevski Family Lawyers

Orders made on 29 April 2015

  1. Leave be granted to the applicant husband to file the Affidavit of Jacqueline Dawson sworn on 24 April 2015.

  2. The time for the respondent wife to file her Response to the Application in an Appeal and her Affidavit in support be extended nunc pro tunc to 22 April 2015.

  3. The Application in an Appeal filed on 12 March 2015 be dismissed.

  4. The question of costs be reserved.

Orders

  1. The applicant husband pay the costs of the respondent wife of and incidental to the Application in an Appeal filed on 12 March 2015, such costs to be assessed on a party/party basis in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Atkins & Hunt (Security for Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 171 of 2014
File Number: SYC 425 of 2012

Mr Hunt

Applicant

And

Ms Atkins

Respondent

REASONS FOR JUDGMENT

Introduction 

  1. On 29 April 2015 this Court heard the Application in an Appeal filed on 12 March 2015 by Mr Hunt (“the husband”) and made the following orders:

    (1)Leave be granted to the applicant husband to file the Affidavit of Jacqueline Dawson sworn on 24 April 2015.

    (2)The time for the respondent wife to file her Response to the Application in an Appeal and her Affidavit in support be extended nunc…

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Atkins & Hunt (Security for Costs) [2015] FamCAFC 66
Case
[2015] FamCAFC 66
Decision Date

CaseChat Overview and Summary

In the matter of Atkins & Hunt, the husband appealed against the decision of a Family Court judge, and sought an order for security for costs in the sum of $75,000. The wife opposed the application on the basis that it was frivolous and vexatious, and that it lacked bona fides. The appeal concerned a family law matter, and the wife applied for an order for costs against the husband, pursuant to the Family Law Act 1975 and the Family Law Rules 2004. The husband's application for security for costs was dismissed on the basis that it was not possible to conclude that the grounds of appeal were unmeritorious, and that there was potential that an order for security would stifle the appeal. The court also found that the application lacked bona fides.

The court was required to determine whether the husband's application for security for costs was frivolous or vexatious, and whether it lacked bona fides. The court considered the merits of the appeal, and found that it was not possible to conclude that the grounds of appeal were unmeritorious. The court also found that there was potential that an order for security would stifle the appeal, and that the application lacked bona fides. The court found that the husband's application was not made in good faith, and that it was an abuse of process. The wife's application for costs was successful, and the court ordered the husband to pay the wife's costs of and incidental to the application. The costs were to be assessed on a party/party basis in default of agreement.

The court's decision was based on a consideration of the merits of the appeal, the potential for an order for security to stifle the appeal, and the bona fides of the husband's application for security for costs. The court found that the husband's application was not made in good faith, and that it was an abuse of process. The wife's application for costs was successful, and the court ordered the husband to pay the wife's costs of and incidental to the application. The court's orders were clear and straightforward, and the husband was ordered to pay the wife's costs on a party/party basis in default of agreement. The outcome of the case was that the husband's application for security for costs was dismissed, and the wife was awarded costs.

Orders

Orders of the court

5.

The applicant husband pay the costs of the respondent wife of and incidental to the Application in an Appeal filed on 12 March 2015, such costs to be assessed on a party/party basis in default of agreement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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