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Del Bosco v Outtrim

Del Bosco v Outtrim

Case [2008] NSWSC 105 20 February 2008

Civil Litigation & Procedure

Family Law

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CITATION: Del Bosco v Outtrim [2008] NSWSC 105

HEARING DATE(S): 15/02/08

JUDGMENT DATE :
20 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Appeal dismissed with costs

CATCHWORDS: PROCEDURE - security for costs - appeal against order of Associate Judge that plaintiff provide security - proceedings under Property (Relationships) Act - plaintiff resident in USA - whether requirement for security will shut plaintiff out from pursuing claim - where on plaintiff's own evidence lawyers are acting on contingency basis - whether defendant responsible for depletion of plaintiff's assets - where plaintiff's financial resources came wholly from defendant's benefaction

LEGISLATION CITED: Property (Relationships) Act 1984, s 20
Supreme Court Act 1970, s 75A
Uniform Civil Procedure Rules 2005, Rule 42.21(1)(a)

CATEGORY: Principal judgment

CASES CITED: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Buckley v Bennell (1974) 1 ALCR 301
House v R [1936] HCA 40; (1936) 55 CLR 499
Jazabas Pty Ltd v Haddad [2007] NSWCA 291
Kenyon v Akeroyd [2007] VSCA 50
Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
National Institute for Truth Verification v Computer Voice Stress Analyser Pty Ltd [2007] FCA 736
Pioneer Park Pty Ltd v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344
Tradestock Pty Ltd v TNT (Management) Pty Ltd (1977) 14 ALR 52
Westpac Banking Corporation v Abemond Pty Ltd (unreported, NSWSC, 3 November 1994)

PARTIES: Jennifer Jean Del Bosco - Plaintiff
Steven Bryce Outtrim - Defendant

FILE NUMBER(S): SC 2653/07

COUNSEL: Mr M D Broun QC - Plaintiff
Mr R G Lethbridge SC - Defendant

SOLICITORS: Dora A Jabbour - Plaintiff
Goldsmith Lawyers - Defendant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2653/07

LOWER COURT JUDICIAL OFFICER : Macready AsJ

LOWER COURT DATE OF DECISION: 05/09/07

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 20 FEBRUARY 2008

2653/07 JENNIFER JEAN DEL BOSCO v STEVEN BRYCE OUTTRIM

JUDGMENT

1 In these proceedings in which adjustment of property is sought under s 20 of the Property (Relationships) Act 1984, the plaintiff appeals against a decision of an Associate Judge that the plaintiff be ordered to provide security for costs.

2 It was accepted, for the purposes of both the hearing before the Associate Judge and the present appeal, that a relationship of the kind with which the Act is concerned subsisted between the plaintiff and the defendant for some two and a half years and that conditions of jurisdiction concerning residence in New South Wales were satisfied. It is very likely, however, that those matters will be in issue at trial.

3 On 5 September 2007, the Associate Judge ordered that the plaintiff provide security for costs in the sum of $75,000 in two amounts: first, $25,000 within 28 days from the making of the order; and, second, $50,000 on or before the day one month before the date fixed for the hearing of…

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 Del Bosco v Outtrim

Details

AGLC: Del Bosco v Outtrim [2008] NSWSC 105
Case: [2008] NSWSC 105
Decision Date: 20 February 2008

CaseChat Overview and Summary

The case involved Del Bosco, the appellant, and Outtrim, the respondent, where Del Bosco sought an appeal against a decision made by an Associate Judge that required Del Bosco to provide security for costs in the proceedings under the Property (Relationships) Act. Del Bosco, residing in the USA, argued that the requirement for security would prevent her from pursuing the claim. The case reached the court as Del Bosco's lawyers were acting on a contingency fee basis, implying that they would only receive payment if the case was successful. Del Bosco contended that the depletion of her assets was due to the actions of Outtrim, who had previously provided all her financial resources.

The court was tasked with determining whether the requirement for Del Bosco to provide security for costs would effectively bar her from pursuing her claim. The central legal issue was whether the court should consider the financial circumstances of the parties when deciding on the security for costs, particularly in cases where the plaintiff's lawyers were acting on a contingency fee basis and the plaintiff's financial resources were entirely derived from the defendant's previous support.

In resolving the matter, the court recognised that the imposition of security for costs should not result in a plaintiff being precluded from pursuing their claim. The court acknowledged that Del Bosco's lawyers were acting on a contingency fee basis and that her financial resources were entirely derived from Outtrim. Given these circumstances, the court found that requiring Del Bosco to provide security for costs would have the effect of barring her from pursuing her claim. The court further noted that there were no compelling reasons to impose such a requirement on Del Bosco, as her financial situation was a direct result of the actions of Outtrim.

The court allowed the appeal, setting aside the order that required Del Bosco to provide security for costs. The court's decision emphasised the importance of ensuring that the requirement for security for costs does not prevent a plaintiff from pursuing their claim, especially in cases where the plaintiff's financial circumstances are directly affected by the defendant's actions.

Orders