Hastings v Hastings - [2009] NSWCA 294

New South Wales

Court of Appeal

CITATION: Hastings v Hastings [2009] NSWCA 294

HEARING DATE(S): 14 September 2009

JUDGMENT DATE:
22 September 2009

JUDGMENT OF: Macfarlan JA

DECISION: (1) Set aside the orders made by Registrar Schell on 22 June 2009.
(2) Dismiss the respondent's application for security for costs.
(3) Order that the costs of the appellant of that application and of the motion for the review of the Registrar's decision be paid by the respondent.

CATCHWORDS: PROCEDURE - security for costs of appeal - appeal would be stultified if security ordered

LEGISLATION CITED: Family Provision Act 1982
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Bell Wholesale Co Ltd v Gates Export Corp (No 2) (1984) 2 FCR 1
Pioneeer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344; (2007) 65 ACSR 383
Piras v Egan [2007] NSWCA 26
Porter v Gordian Runoff Ltd [2004] NSWCA 171
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Tomko v Plasty (No 2) [2007] NSWCA 369; (2008) 71 NSWLR 61
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143

PARTIES: Phillip Hastings (Appellant)
John William Hastings (Respondent)

FILE NUMBER(S): CA 40063/09

COUNSEL: C M Simpson SC (Appellant)
L J Ellison SC (Respondent)

SOLICITORS: Coode and Corry (Appellant)
Thomas McDarra & Co (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 40063/09

LOWER COURT JUDICIAL OFFICER: Registrar Schell

LOWER COURT DATE OF DECISION: 22 June 2009

CA 40063/09

MACFARLAN JA
TUESDAY 22 SEPTEMBER 2009

HASTINGS v HASTINGS

Judgment

1 HIS HONOUR: This is a motion for review, pursuant to rule 49.19 of the Uniform Civil Procedure Rules 2005 (“UCPR”), of orders made by Registrar Schell on 26 June 2009. The Registrar ordered the appellant to provide security for costs of his appeal in the amount of $22,000 and to pay the respondent’s costs of the motion seeking security.

2 The proceedings at first instance were the subject of a judgment of White J on 9 December 2008. His Honour dismissed the summons by which the appellant sought an order for provision, pursuant to s 7 of the Family Provision Act 1982, out of the estate of his late mother who died on 29 February 2008. The deceased was survived by two sons, the appellant and the respondent. The appellant was aged 57 at the time of the hearing at first instance and the respondent was aged 61. The deceased appointed the respondent as her executor and left him all of her estate. The estate was initially valued for probate purposes at $643,789. This figure was increased somewhat as a result of market appraisals of the house property which is the main asset of the estate.

3 White J described the principal question in the case as whether the appellant’s “criminal conduct and long absences…

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: [2009] NSWCA 294
Decision Date: 22 September 2009

CaseChat Overview and Summary

In *Hastings v Hastings*, the appellant sought to set aside orders made by Registrar Schell on 22 June 2009, which had granted the respondent's application for security for costs of an appeal. The core of the dispute concerned whether the respondent, who was appealing a decision, should be required to provide security for the costs of the appeal.

The primary legal issue before Macfarlan JA was whether the Registrar's order for security for costs was correctly made, and specifically, whether ordering security would effectively stultify the appeal itself. This required the court to consider the principles governing applications for security for costs, particularly in the context of an appeal, and to assess the potential impact of such an order on the appellant's ability to pursue their appeal.

Macfarlan JA reasoned that the purpose of security for costs is to ensure that a respondent has recourse for their costs if an appeal is unsuccessful, but this purpose must be balanced against the right of a party to appeal. In this instance, the court found that ordering security for costs would indeed stultify the appeal, meaning it would prevent the appeal from being heard. Consequently, the court determined that the Registrar's order was erroneous.

Accordingly, the orders made by Registrar Schell on 22 June 2009 were set aside, and the respondent's application for security for costs was dismissed. The respondent was also ordered to pay the costs of the appellant in relation to that application and the subsequent motion for review of the Registrar's decision.

Orders

Orders of the court

(1) Set aside the orders made by Registrar Schell on 22 June 2009.

(2) Dismiss the respondent's application for security for costs.

(3) Order that the costs of the appellant of that application and of the motion for the review of the Registrar's decision be paid by the respondent.

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

Full text does not contain this section.

CITATION:	Hastings v Hastings [2009] NSWCA 294
HEARING DATE(S):	14 September 2009
JUDGMENT DATE:	22 September 2009
JUDGMENT OF:	Macfarlan JA
DECISION:	(1) Set aside the orders made by Registrar Schell on 22 June 2009. (2) Dismiss the respondent's application for security for costs. (3) Order that the costs of the appellant of that application and of the motion for the review of the Registrar's decision be paid by the respondent.
CATCHWORDS:	PROCEDURE - security for costs of appeal - appeal would be stultified if security ordered
LEGISLATION CITED:	Family Provision Act 1982 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Bell Wholesale Co Ltd v Gates Export Corp (No 2) (1984) 2 FCR 1 Pioneeer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344; (2007) 65 ACSR 383 Piras v Egan [2007] NSWCA 26 Porter v Gordian Runoff Ltd [2004] NSWCA 171 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 Tomko v Plasty (No 2) [2007] NSWCA 369; (2008) 71 NSWLR 61 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143
PARTIES:	Phillip Hastings (Appellant) John William Hastings (Respondent)
FILE NUMBER(S):	CA 40063/09
COUNSEL:	C M Simpson SC (Appellant) L J Ellison SC (Respondent)
SOLICITORS:	Coode and Corry (Appellant) Thomas McDarra & Co (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	40063/09
LOWER COURT JUDICIAL OFFICER:	Registrar Schell
LOWER COURT DATE OF DECISION:	22 June 2009