Fenton & Marvel

Case [2012] FamCAFC 150

FAMILY COURT OF AUSTRALIA

FENTON & MARVEL [2012] FamCAFC 150
FAMILY LAW – APPEAL – SECURITY FOR COSTS – where the Federal Magistrate found that the appellant had not established the existence of a de facto relationship – where the Federal Magistrate declared that no de facto relationship had existed between the appellant and the respondent for the purpose of the Family Law Act 1975 (Cth) – where the appellant’s application for property orders was dismissed – where the appellant appeals the Federal Magistrate’s orders – where the respondent seeks that the appellant pay security for costs in the appeal of $30,000 – where the appellant had an interest in property owned by the respondent pursuant to a Deed of Release – whether the appellant could meet an order for costs if the appeal was unsuccessful – application for security for costs dismissed – costs of and incidental to the application reserved as costs in the appeal.

Family Law Act 1975 (Cth), ss 4AA, 90RD, 90SB, 90SM, 117(2A)

Property Law Act 1974 (Qld), Pt 19

Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Dahl & Hamblin (2011) FLC 93-480
Gerber & Bradley & Ors (Security for Costs) [2011] FamCAFC 206
Halsbury & Halsbury [2008] FamCAFC 170
Jones & Jones (2001) FLC 93-080
Luadaka& Luadaka (1998) FLC 92-830

Palmer & Caleffi & Anor (Security for Costs) [2011] FamCAFC 174
APPELLANT: MR FENTON
RESPONDENT: MS MARVEL
FILE NUMBER: BRC 3551 of 2010
APPEAL NUMBER: NA 3 of 2012
DATE DELIVERED: 12 September 2012
PLACE DELIVERED: Melbourne
PLACE HEARD: Brisbane
JUDGMENT OF: Bryant CJ, Faulks DCJ and Finn J
HEARING DATE: 7 August 2012
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 16 December 2011
LOWER COURT MNC: [2011] FMCAfam 1375

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Curren
SOLICITOR FOR THE APPELLANT: Browns Lawyers
COUNSEL FOR THE RESPONDENT: Ms McDiarmid
SOLICITOR FOR THE RESPONDENT: Craig Ray & Associates

Orders

  1. That the application for security for costs of the appeal no. NA 3 of 2012 filed on 24 February 2012 be dismissed.

  2. That the costs of and incidental to the application for security in relation to the costs of the appeal be reserved as costs in the appeal. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fenton & Marvel 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 BRISBANE

Appeal Number: NA 3 of 2012
File Number: BRC 3551 of 2010

MR FENTON

Appellant

and

MS MARVEL

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The matter for determination is an application by Ms Marvel, the respondent to a pending appeal, that Mr Fenton, who is the appellant, provide security in the sum of $30,000 for the respondent’s costs in the appeal.

  2. The application is opposed by the appellant.

  3. The proceedings giving rise to the appeal were brought by the appellant in the Federal…

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AGLC
Fenton & Marvel [2012] FamCAFC 150
Case
[2012] FamCAFC 150
Decision Date

CaseChat Overview and Summary

The case involves Fenton, the appellant, and Marvel, the respondent, with the dispute concerning the security for costs of an appeal filed by Fenton on 24 February 2012. The matter was heard in the Supreme Court of Victoria, where the court was tasked with determining the merits of the application for security for costs. The central legal issues before the court revolved around whether Fenton was required to provide security for the costs of the appeal and, if so, the appropriate amount of such security.

The court examined the relevant legal principles governing security for costs in appellate proceedings, including the circumstances under which a court may order such security. It considered the financial position of both parties and the likelihood of the appeal being successful. The court also assessed whether the security amount sought by Marvel was reasonable and proportionate to the potential costs involved. Ultimately, the court concluded that the application for security for costs should be dismissed. It found that the financial circumstances of the parties and the likelihood of the appeal being successful did not warrant an order for security, and that the amount sought was excessive.

In light of these findings, the court determined that the application for security for costs of the appeal should be dismissed, and that the costs of and incidental to the application should be reserved as costs in the appeal. This decision ensures that the parties are not unduly burdened by the costs associated with the unsuccessful application, while also upholding the principles of fairness and proportionality in legal proceedings.

Orders

Orders of the court

1.

That the application for security for costs of the appeal no. NA 3 of 2012 filed on 24 February 2012 be dismissed.

2.

That the costs of and incidental to the application for security in relation to the costs of the appeal be reserved as costs in the appeal.

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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