Grant and Grant

In this matter before Cronin J of the Family Court of Australia, the wife sought the summary dismissal of the husband's application to discharge consent orders made in 2003, or alternatively, for security for costs. The husband sought to prevent the wife from proceeding with her application until she made proper financial disclosure. The parties, both aged 60, had separated in 2002 after cohabiting since 1981 and marrying in 1990. They had previously reached an agreement for property settlement in 2003, which was initially rejected by a Registrar and subsequently formalised by consent orders in November 2003, prepared by a solicitor. The husband later filed an application under section 79A of the *Family Law Act 1975* (Cth) to discharge these orders, alleging various grounds including miscarriage of justice, misrepresentation, duress, and impracticability of carrying out the orders.

The court was required to determine two primary legal issues: first, whether the husband's application to discharge the consent orders should be summarily dismissed, and second, whether the wife was entitled to an order for security for costs. In relation to the summary dismissal, the court had to consider whether there was a "real question to be tried" and whether the husband's application was "hopeless or doomed to fail," applying the principles of exceptional caution required for summary judgment. Regarding security for costs, the court needed to assess the husband's financial position, the prospects of success of his substantive application, the bona fides of his claim, and whether an order for security would be oppressive or stifle the litigation, considering the wife's potential difficulty in recovering costs if unsuccessful.

Cronin J reasoned that the husband's application for summary dismissal could not succeed because there was a justiciable issue to be tried, particularly concerning allegations of unconscionable conduct. The court found that the husband's assertion that he was pressured into signing the settlement documents due to financial desperation, as outlined in his affidavit, raised a matter that required testing at trial, referencing equitable principles concerning unconscionable conduct established in cases like *Commercial Bank of Australia Ltd v Amadio* and *Bridgewater v Leahy*. Consequently, the application for summary dismissal was refused. On the issue of security for costs, the court found it appropriate to make an order, noting the husband's unclear financial position, his potential impecuniosity, and the significant costs likely to be incurred in valuing international assets. The court considered the husband's financial means, the risks to the wife, and the potential difficulty in enforcing costs orders against him, concluding that an order for security would not stifle the litigation.

The court ordered that the wife's application for summary dismissal of the husband's substantive application be refused. It further ordered that the husband pay $40,000 into the trust account of his solicitors as security for costs, to be held in an interest-bearing account. The court also directed that the wife's Form 2 application be dismissed, while the further hearing of the husband's amended Form 1 application and the wife's response be adjourned for further mention.