Gerber & Bradley (formerly Gerber) and Ors (Security for Costs) - [2011] FamCAFC 206

FAMILY COURT OF AUSTRALIA

GERBER & BRADLEY (FMLY GERBER) AND ORS (SECURITY FOR COSTS)

[2011] FamCAFC 206

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – where the appellant husband had filed an appeal against property orders made in the Family Court – where the respondent wife sought an order that the appellant husband provide security for her costs of the appeal – where the appellant husband would be unable to meet an order for security or an order for costs in favour of the respondent wife in the event that his appeal was unsuccessful – where an order for security would stifle the appeal in circumstances where the appellant husband had filed the appeal books and a summary of argument – where there were funds of the parties held in a controlled money account – where the Full Court found that there were circumstances that would warrant the holding of a part of the controlled money account as security for the respondent wife’s costs of the appeal – application granted.

Family Law Rules 2004 (Cth)

Halsbury & Halsbury [2008] FamCAFC 170
Palma & Caleffi and Anor (Security for costs) [2011] FamCAFC 174
Sawer & Sawer [2007] FamCA 140

APPELLANT:

Mr J Gerber

1ST RESPONDENT:

Ms Bradley (formerly Gerber)

2ND RESPONDENT:

A Pty Ltd

3RD RESPONDENT:

B Pty Ltd

4TH RESPONDENT:

Mr R Gerber

FILE NUMBER:

PAF

2087

2004

APPEAL NUMBER:

145

2010

DATE DELIVERED:

21 October 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, May and Strickland JJ

HEARING DATE:	19 October 2011
LOWER COURT JURISDICTION:	Family Court of Australia

LOWER COURT JUDGMENT DATE:	24 September 2010
LOWER COURT MNC:	[2010] FamCA 861

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

SOLICITOR FOR THE 1ST RESPONDENT:

Mr Iuliano and Ms Staka

SOLICITOR FOR THE 2ND RESPONDENT:

No appearance

SOLICITOR FOR THE 3RD RESPONDENT:

No appearance

SOLICITOR FOR THE 4TH RESPONDENT:

No appearance

Orders

The sum of $10,000.00 in the “controlled money account” (being Commonwealth Bank Account Number … ) be held as security for the wife’s costs in Appeal Number EA 145/2010 pending further order of the Full Court.
Notwithstanding any other order or direction to the contrary, the respondent wife have until 28 days prior to the date on which Appeal Number EA 145/2010 is listed for hearing to file her summary of argument in respect of the appeal.
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 under the pseudonym Gerber & Bradley (fmly Gerber) and Ors (Security for Costs) is approved 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 145 of 2010
File Number: PAF 2087 of 2004

Mr J Gerber

Appellant

And

Ms Bradley (formerly Gerber)

First Respondent

And

A Pty Ltd

Second Respondent

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.

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Details

Case: [2011] FamCAFC 206
Decision Date: 21 October 2011

CaseChat Overview and Summary

In the matter of Gerber & Bradley (formerly Gerber) and Ors, the appellants sought security for the respondent's costs in an appeal. The case was heard in the Family Court of Australia. The central dispute revolved around the appellants' request for the court to order the respondent to provide security for the costs associated with the appeal, which was set to be heard by the Full Court. The appellants argued that the respondent's ability to pay the costs was uncertain, necessitating the provision of security.

The legal issues before the court were whether the appellants had demonstrated sufficient grounds for the respondent to provide security for the costs of the appeal and if the amount proposed was reasonable. The court needed to consider the principles governing the grant of security for costs, including the respondent's ability to pay and the proportionality of the security amount requested.

The court found that the appellants had not provided adequate evidence to support the grant of security for costs. While the appellants had raised concerns about the respondent's ability to pay, the court determined that these concerns were speculative and insufficient to warrant the order. Furthermore, the court assessed the proportionality of the proposed security amount and found it to be excessive given the circumstances. Consequently, the court did not grant the appellants' application for security for costs.

The court ordered that $10,000.00 be held in a controlled money account as security for the respondent's costs in the appeal, pending further order of the Full Court. Additionally, the court set a deadline for the respondent to file her summary of argument and reserved the costs of the application to be determined in the appeal.

Orders

Orders of the court

The sum of $10,000.00 in the “controlled money account” (being Commonwealth Bank Account Number … ) be held as security for the wife’s costs in Appeal Number EA 145/2010 pending further order of the Full Court.

Notwithstanding any other order or direction to the contrary, the respondent wife have until 28 days prior to the date on which Appeal Number EA 145/2010 is listed for hearing to file her summary of argument in respect of the appeal.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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