H, AW v K, S (No 2)

Case [2022] SASCA 88

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

H, AW v K, S (No 2)

[2022] SASCA 88

Judgment of the Honourable Justice Bleby  

1 September 2022

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

Application for security for costs.

The appellant is appealing against a decision of a single judge of this Court, granting the respondent’s application for costs in respect of the appellant’s claim and the respondent’s counterclaim.

The respondent seeks an order that the appellant is to provide security for costs in the sum of $35,000.

Held, granting the application for security for costs:

1.      The appellant is to provide security for costs by payment of $25,000 into Court.

2.      The appeal is stayed until security in that sum is provided by the appellant.

Family Law Act 1975 (Cth) s 4AA; Uniform Civil Rules 2020 (SA) rr 115.1, 132.6, 195, 195.1(3), 215.3, referred to.
Australian Dream Homes Pty Ltd v Stojanovski [2016] VSCA 38; Diakos v Mason [2010] SASC 108; Draoui v Le & Ors [2020] SASC 115; Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3) [2016] SASC 81; H, AW v K, S [2021] SASC 128; H, AW v K, S (No 2) [2022] SASC 49; H, AW v K, S [2022] SASCA 69; Logue v Hansen Technologies Ltd (2003) 125 FCR 590; Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2019] SASC 124; NV Sumatra Tobacco Trading Company v British American Tobacco Australia Services Ltd [2008] FCA 1542; PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321, considered.

H, AW v K, S (No 2)

[2022] SASCA 88

Court of Appeal – Civil

  1. BLEBY JA:     This is an application for security for costs on an appeal against a costs order of this Court. On 18 July 2022, I granted leave to appeal[1] and indicated that the next step in the appeal proceedings was for the respondent to pursue her application for security for costs.

  2. The appellant and the respondent were in a personal relationship from about August 2014. During that time, the appellant gave the respondent some large sums of money and a luxury motor vehicle. After the relationship broke down, the appellant sought a declaration that the respondent held a sum of money on trust for him and that he owned the motor vehicle which remained in her possession. He sought restitution of the money in the alternative. The primary judge found that the motor vehicle and the money were gifts and dismissed the appellant’s application.

  3. The respondent counterclaimed, seeking a declaration that she and the appellant had been in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth). The primary judge dismissed the counterclaim.

  4. The basis of the costs orders the primary judge made are…

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H, AW v K, S (No 2) [2022] SASCA 88
Case
[2022] SASCA 88
Decision Date

CaseChat Overview and Summary

This matter concerned an application for security for costs in an appeal before the Supreme Court of South Australia. The parties involved were the appellant and the respondent, with the dispute revolving around the quantum of security to be ordered pending the hearing of the appeal.

The primary legal issue before the Court was to determine an appropriate and reasonable sum to be ordered as security for the respondent's costs of the appeal, considering the estimated preparation time and fees. The Court was required to assess whether the respondent's proposed estimate for counsel and solicitor preparation was excessive.

In reaching its decision, the Court found that the respondent's estimate of two days' preparation for senior and junior counsel, along with $10,000 for solicitors' fees, was excessive. The Court reasoned that the legal issues, while requiring close attention, had already been litigated once. Consequently, the Court determined that three days of preparation in total for counsel, and one day for the solicitor's attendance and preparation, would be appropriate. Applying these considerations, the Court concluded that a sum of $25,000 would be an appropriate amount to order as security for costs.

The Court ordered that the appellant provide security for costs by paying $25,000 into Court. The appeal was stayed until this security was provided, with the Court indicating it would hear the parties regarding the date after which the respondent could apply for liberty to proceed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The legal issues on the appeal are clear, albeit that they will require some degree of close attention by counsel in preparation. Nevertheless, they have already been litigated once. The estimate of two days’ preparation for each of senior and junior counsel, together with $10,000 for solicitors’ fees, is excessive. I would allow three days preparation total for counsel as between senior and junior together. I would allow one day for the solicitor’s attendance at the appeal and some small amount for preparation. In my view, the sum of $25,000 would be appropriate to order as security.Conclusion I propose to make the following orders:1.The appellant is to provide security for costs by payment of $25,000 into Court.2.The appeal is stayed until security in that sum is provided by the appellant. I will hear the parties as to the date after which the respondent may have liberty to apply.

Ratio Decidendi

Legal Principle Established

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