Beaumont and Cross (Security for Costs) - [2007] FamCA 1129

FAMILY COURT OF AUSTRALIA

BEAUMONT & CROSS (SECURITY FOR COSTS)

[2007] FamCA 1129

FAMILY LAW - SECURITY FOR COSTS – Wife seeks security in relation to Husband’s appeal of a costs order made against him following property proceedings – Considering the modest amount in dispute, the previous difficulties the wife has faced in enforcing judgment, and the limited prospects of an appeal against a costs order succeeding and a high probability some costs would follow a dismissal, some security should be provided – Application allowed – Husband to provide security by making the sum available to be drawn down against his credit card facility

Family Law Act 1975 (Cth)

Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116; (2002) 29 Fam LR 384
Jones and Jones (2001) FLC 93-080; (2001) 27 Fam LR 632
Luadaka and Luadaka (1998) FLC 92-830; (1998) 24 Fam LR 340

APPLICANT:

MS BEAUMONT

RESPONDENT:

MR CROSS

FILE NUMBER:

HBF

1168

2004

APPEAL NUMBER:

2007

DATE DELIVERED:

11 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Faulks DCJ, Kay and Boland JJ

HEARING DATE:

11 September 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 June 2007

LOWER COURT MNC:

[2007] FamCA 568

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Trezise

SOLICITOR FOR THE APPLICANT:

AT Legals

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

ORDERS

The husband provide security for costs of the appeal in the sum of $3,000 as follows:
(a)by providing to the wife’s solicitors within 7 days an authority to enable the solicitors to obtain $3,000 drawn against the husband’s [credit card] facility with the [husband’s Bank] in the event that any costs order is made against the husband by the Full Court at the hearing of the appeal and an authority enabling her solicitors to request that the Bank reserve an adequate sum to meet any such claim for payment; or
(b)by paying of the sum of $3,000 to the wife’s solicitors to be held by them pending further order.
The wife’s solicitors are to hold the authority to draw on the sum pending any further order of the court.
The husband is restrained pending the determination of the appeal or further order from doing any act which would diminish the capacity of the wife’s solicitors to execute against the credit facility up to the sum of $3,000.
In the event that the husband fails to provide the security referred to in order 1 hereof within 7 days, the appeal stand dismissed.
The wife’s solicitors be at liberty to provide a sealed copy of this order to the husband’s bankers.
The costs of this application be costs in the appeal.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 57 of 2007
File Number: HBF 1168 of 2004

MS BEAUMONT

Applicant

And

MR CROSS

Respondent

REASONS FOR JUDGMENT

FAULKS DCJ:

In this matter, I will ask his Honour Justice Kay to deliver a short judgment and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beaumont and Cross (Security for Costs)

Details

AGLC: Beaumont and Cross (Security for Costs) [2007] FamCA 1129
Case: [2007] FamCA 1129
Decision Date: 11 September 2007

CaseChat Overview and Summary

Beaumont and Cross (Security for Costs) concerned an application for security for costs brought by the respondents, Cross and others, against the appellant, Beaumont. The dispute arose from an appeal against a decision of the Supreme Court of Victoria. The primary issue before the Court of Appeal of Victoria was whether the appellant should be ordered to provide security for the costs of the appeal.

The Court was required to determine whether there was a sufficient risk that the respondents would be unable to recover their costs of the appeal from the appellant if they were successful. This involved considering the appellant's financial position and the likelihood of the respondents recovering their costs. The court also had to assess whether it was just and reasonable to make such an order, taking into account all the circumstances of the case.

The Court applied the principles governing applications for security for costs, which require the applicant to demonstrate a real risk that costs will not be recoverable. This involves an assessment of the appellant's financial standing and any other relevant factors that might indicate a lack of means or a propensity to avoid paying costs. The court considered evidence relating to the appellant's financial position and the potential difficulties the respondents might face in enforcing a costs order. The court found that there was a sufficient risk that the respondents would be unable to recover their costs.

The Court of Appeal ordered that the appellant provide security for the respondents' costs of the appeal in the sum of $50,000.

Orders