Kaufer & Kaufer
[2024] FedCFamC1F 830
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kaufer & Kaufer [2024] FedCFamC1F 830
File number(s): SYC 701 of 2024 Judgment of: BOYLE J Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE –Application by the Second Respondent to be removed as a party to the proceedings – Where the Applicant contends that she has an equitable claim as against the Second Respondent – Where the court finds that is necessary for the Second Respondent to be a party to the proceedings Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01
Cases cited: B Pty Ltd and Ors & K and Anor (2008) FLC 93-380
Gabini & Gabini [2014] FamCAFC 18
Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223
Hohol v Hohol (1980) FLC 90-824
Khalif & Khalif & Anor [2020] FamCA 39
Riemann & Riemann and Ors (No. 3) [2017] FamCA 911
Victoria v Sutton (1998) 195 CLR 291
Wayne v Dillon (2008) 40 Fam LR 543
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 19 November 2024 Place: Sydney Counsel for the Applicant: Dr Leslie Solicitor for the Applicant: Andrew Warren Associates Solicitor for the Respondent: Gupta & Co Pty Ltd Counsel for the Second Respondent: Ms Tabbernor Solicitor for the Second Respondent: Dimocks Lawyers ORDERS
SYC 701 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KAUFER
Applicant
AND: MR KAUFER
First Respondent
MS B KAUFER
Second Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The matter remains listed for a Directions Hearing before Senior Judicial Registrar Turner on 20 January 2025 at 9:30am.
2.The Amended Application in a Proceeding filed by the Second Respondent on 5 August 2024 is dismissed.
3.The Applicant wife’s application for the costs of the hearing of the Amended Application in a Proceeding filed on 5 August 2024 will be dealt with at the time of Final Hearing of the matter.
4.Within 14 days, the Applicant shall file and serve an Amended Initiating Application.
5.Within 14 days thereafter the First Respondent and Second Respondent shall file and serve any Amended Response.
Conciliation Conference
6.The parties and any lawyers on the record shall attend a Conciliation Conference with Judicial Registrar Newham on 22 January 2025 at 9:00am.
7.The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.
8.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Applicant and the First Respondent must pay the Conciliation Conference fee in equal amounts no less than seven (7) days prior to the Conference.
9.Not later than 4.00pm on 15 January 2025 each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court (by email to …@...) and to the other party a single collated bundle of documents comprising:
(d)a Confidential Outline of Case (Dispute Resolution);
(e)a detailed minute of Orders Sought;
(f)details of any previous or current family violence orders;
(g)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(h)particulars of any financial resource;
(i)a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(j)statements for, and where applicable, valuations of any superannuation interest; and
(k)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:
There was an application filed by the wife on 6 February 2024 which named the husband’s mother as the Second Respondent. Before the court is the Second Respondent's Application in Proceeding, amended on 5 August 2024, that she be removed as a party. In the alternate, orders are sought for security for costs of $100,000 and that the orders sought by the wife against the Second Respondent be struck out.
For ease of convenience, I will refer to the parties as husband, wife and Second Respondent, although I appreciate that it is the Second Respondent's Application in a Proceeding I am dealing with.
The wife seeks, through an Amended Response to an Application in a Proceeding filed on 11 November 2024, that the Second Respondent's application be dismissed. In the alternative, the wife seeks orders requiring the husband to pay the wife's litigation funding, or pay to her an interim property settlement of $100,000 for the purposes of her providing security for the Second Respondent's costs. Should the husband fail to comply with orders, the unit in Suburb B owned by the husband where the wife resides be sold and she be appointed trustee for sale, and other ancillary orders.
The husband seeks no orders other than that the wife pay his costs of this application.
DOCUMENTS RELIED UPON
Each of the parties filed Case Outline Documents identifying the documents relied upon.
Each of the Second Respondent and the wife have filed tender bundles of documents, to which I have had regard.
THE LAW WITH RESPECT TO THE APPLICATION FOR REMOVAL
Section 79(10)(b) of the Family Law Act 1975 (Cth) (“the Act”) provides that any other person whose interests would be affected by the making of an order is entitled to be joined to the proceedings.
The Act reflects what McHugh J observed in Victoria v Sutton (1998) 195 CLR 291 that:
77.The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. …
(Footnote omitted)
Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
3.01 Necessary parties
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
In Wayne v Dillon (2008) 40 Fam LR 543 (“Wayne v Dillon”), Warnick J observed in respect of the old Family Law Rules 2004 (Cth) that “necessary” meant:
18. … something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.
19. However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute”. …
The Full Court in B Pty Ltd and Ors & K and Anor (2008) FLC 93-380 held as follows:
52. We do not accept that it is proper to allow joinder of third parties merely upon the formulation of a paragraph in, or to be added to, an application, on the basis that at trial facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.
In Riemann & Riemann and Ors (No. 3) [2017] FamCA 911 at [37], McClelland J (as he then was) cited with approval the judgment of Le Miere J in Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223 where Le Miere J observed as follows:
27.The applicant on a joinder application must show that there is an arguable case sufficient to resist the entry of summary judgment by the parties sought to be joined: Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 [6] (Tamberlin J). The test is that stated by Barwick CJ at 128 - 129 in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125: Universal Music Australia Pty Ltd v Cooper [7] (Tamberlin J); Review Australia Pty Ltd v Red Berry Enterprises Pty Ltd [2003] FCA 1009 [5] (Heerey J). It would be futile to order that a person be joined as a defendant if the material before the court disclosed that if the person, having been joined as a defendant, applied for summary judgment the application would succeed.
THE APPLICATION
The Second Respondent had no opportunity to be heard with respect to the joinder. The Application in a Proceeding is filed by her in circumstances where she argues the wife has had an opportunity to articulate the orders that she seeks against the Second Respondent, and she has not done so.
The application of the wife seeks orders firstly against the husband that upon the assets and liabilities of the husband and wife being determined, they be divided 70 per cent to the wife and 30 per cent to the husband. She seeks, as against the Second Respondent, a declaration that the Second Respondent holds her legal interest together with her equitable interest as surviving joint tenant in the Suburb B property upon a common intention constructive trust for the husband and wife. She then seeks that she be entitled to a share of the common intention constructive trust and that the Second Respondent holds her legal interest in the Suburb B property in such proportions as may be determined by the court upon the provision of full and frank financial disclosure.
The wife filed Points of Claim on 12 November 2024 and then a Case Outline with respect to these proceedings on 14 November 2024. In the Points of Claim, the wife refers to the basis for her claim as being a remedial constructive trust, and she seeks that the Second Respondent do all things necessary to transfer her right, title and interest in the Suburb B property to the husband and wife. In the alternate, the wife claims that the doctrine of quantum meruit apply and that the Second Respondent be ordered to repay to the husband and wife a sum equal to the amount they have expended on the Second Respondent's property.
With respect to the orders sought by the wife against the Second Respondent, the elements of a common intention constructive trust are set out in Hohol v Hohol (1980) FLC 90-824 and Gabini & Gabini [2014] FamCAFC 18. In essence, it is this:
(a)First, the parties formed a common intention as to the ownership of the beneficial interest. This will usually be formed at the time of the transaction and may be inferred as a matter of fact from the words or conduct of the parties.
(b)Secondly, the party claiming a beneficial interest must show that he or she has acted to his or her detriment.
(c)Thirdly, it would be a fraud on the claimant for the other party to assert that the claimant had no beneficial interest in the property.
The Second Respondent seeks through the Application in a Proceeding a reversal of her joinder to the application. In the circumstances of considering the application, the court is required to consider the wife's case at its highest. It must be found that the wife has an arguable case.
BACKGROUND
In 1986, the Second Respondent and her husband, now deceased, purchased as joint tenants a property at Suburb B. She has lived there ever since.
The Second Respondent is the husband's mother. She is 81 years old.
In 2003, the spouse parties met. There was a marriage arranged by their families with their consent.
The wife is a qualified allied health professional. She has had breaks in employment around the birth of both children. She was engaged in part-time work until late 2021 when she ceased paid employment.
The husband has been in full-time employment through the public service. In 2014, he completed studies to qualify as a certified finance professional.
The spouse parties married in 2004. They have two children, now aged 15 and 10.
Following the marriage, the parties lived in the apartment in Suburb B which, at the time, was owned by the husband 50 per cent with one of his brothers, subject to a mortgage.
On 21 August 2009, the husband and wife paid out his brother's share and refinanced the mortgage. The brother's share in the property was transferred to the husband. The Suburb B apartment has been rented for the 14 years that the spouse parties resided with the husband's parents.
In 2008, the husband sold an investment property for $290,000. The funds then available were provided by him to his father. The husband's evidence is that was an amount of $80,000. The wife is not aware of the specific amount paid.
In 2008, the husband’s father was diagnosed with an illness.
In 2009, the spouse parties moved in with the husband's parents. At the time, their oldest child was three months old. No rent was paid over the 14 year period when the husband and wife lived with the Second Respondent in her home.
In 2012, the husband's father passed away.
The parties separated on 21 December 2023. In January 2024, the wife and children moved to the Suburb B unit. The children are living between the spouse parties in an equal time arrangement. Both children have special health needs.
CONTESTED FACTS
The wife's evidence is that she and the husband had conversations with the husband’s father from 2005 to 2009 about moving into the Suburb B property. She sets out examples of those conversations in her affidavit:
I want you to move into my house in [Suburb B] to help look after [Ms B Kaufer] and me. I will leave the house to you when I die if you do. I want to make sure my 3 children are treated equally, so I am going to leave [Mr C] and [Mr D] our superannuation and savings. If I do that then my 3 children will all be treated equally under our Wills.[1]
[1] Wife’s affidavit filed 11 November 2024, paragraph 13.
The wife did not wish to live with the husband's parents on her evidence and resisted that occurring until 2009.
In 2008, the husband sold the Suburb E apartment for $290,000, discharged the mortgage and gave a sum of money to his father. The wife's evidence is that the husband told her:
Dad’s been thinking about his Will. Because of the crash in the stock market his other assets are worth less now so if we get the house, we will be getting more than my brothers under his Will because we are getting his house. So I am going to have to sell [Suburb E] and give Dad the money from it.[2]
[2] Wife’s affidavit filed 11 November 2024, paragraph 15.
The husband's evidence is that he paid his father $80,000 with respect to payment of debts. There is no particular evidence about the debt that is alleged by the husband before the court.
The Second Respondent, on the wife's evidence, was not present for nor a participant in, the conversations referred to by the wife between the husband and his father, nor the husband and wife prior to 2009. The wife argues that the Second Respondent was aware of the agreement. The first conversation referred to where the Second Respondent is asserted to be present was in 2009, where the spouse parties agreed to move into the property. The husband and wife said words to the effect:
R and I: “After the baby is born, we will move into your place and look after you”.
[Mr F] and [Ms B Kaufer]: “We are both so happy that you're finally going to move in with us”.
[Mr F]: “I am organising my Will now. If I die the house will be transferred to you two”.[3]
[3] Wife’s affidavit filed 11 November 2024, paragraph 20.
The wife's case is that the spouse parties moved in with the husband's parents in 2009 after the husband’s father’s diagnosis and the birth of their first child. The wife gives evidence that the Second Respondent has said on numerous occasions after the husband’s father’s death “[Mr Kaufer] and [Ms Kaufer] own the house. They’re going to look after me. The house is worth a lot of money and the other kids get our superannuation and money and [Country G] house proceeds”.[4]
[4] Wife’s affidavit filed 11 November 2024, paragraph 60.
There is no issue that the spouse parties rented out the Suburb B apartment for the next 14 or 15 years. They now hold that property mortgage free. The wife resides there as do the children when they live with her. There is no issue that no rent was paid by the spouse parties for their accommodation with the husband's parents at any time.
The Second Respondent gives evidence that the parties came to live in the home after the birth of the new baby for support, and so they could be assisted financially by enabling them to rent the Suburb B apartment.
The wife's case is that until 2012, the Second Respondent and her husband met their own expenses including all outgoings on the property and groceries and the like. On the wife's case, the Second Respondent was highly dependent on her husband. She did not shop by herself nor do banking, including obtaining funds from the ATM, nor drive, nor catch public transport.
From 2012 the husband and wife paid all outgoings on the property such as rates and utilities and maintenance on the property from their joint account. The wife provides a list of work done at their expense, including replacement of windows, renovation of an ensuite bathroom, installing a new hot water system, replacing whitegoods, rewiring the property, cabinetry, and other repairs and maintenance.
In addition, the wife gives evidence that the husband and wife met the Second Respondent's living expenses such as groceries, other than minor items that the Second Respondent occasionally purchased. The Second Respondent paid an annual amount to the husband and wife which, over time, increased to $10,000.
The wife refers to conversations between the husband and Second Respondent where the Second Respondent said “The house is your responsibility, I don’t understand why I have to pay for anything”, and the husband replied with words to the effect of “we pay for the house. You have to pay for your food, you use our appliances, you use our stuff, you stay at home all day using the electricity, you have to contribute to your living costs. It’s all getting so expensive, you just need to contribute a bit more to cover it”.
The wife refers to providing care to the Second Respondent by driving her, taking her out, assisting her to take money out of the ATM, and other matters of that sort. The wife argues that this was part of the husband and wife providing support to the Second Respondent in accordance with their agreement that had been reached as part of the common intention trust. The wife relies on the lack of evidence of day to day grocery expenses, for example, paid from the Second Respondent's bank accounts to support this contention. The amount spent by the husband and wife has not been specified by the wife.
The wife says she was not privy to payments made, and that the husband dealt with the parties' finances. Although some payments came from the parties' joint account, other payments were made from a H Bank and J Bank account in the sole name of the husband.
There have been delays in disclosure, and objections to subpoena which the wife issued. Some bank statements were, on her case, produced redacted. As I understand the evidence, the wife has had access to the totality of the accounts since September 2024.
The husband and the Second Respondent argue that the Second Respondent paid $7,000 to $10,000 annually to the spouse parties to cover expenses such as council rates and utilities. From 2018, council rates were paid by direct deposit from the Second Respondent's account. The Second Respondent sets out additional payments to the husband's H Bank account and J Bank account for expenses including renovation, plumbing and roof cleaning.
In a schedule to her affidavit, the Second Respondent sets out payments amounting to $150,000. The husband's evidence of costs met by the Second Respondent is $137,879.
CONSIDERATION
In order to ascertain if a common intention trust exists, the following matters need to be established:
(a)Did the parties form a common intention as to the ownership of the beneficial interest?
(b)Has the wife shown that she and the husband have acted to their detriment?
(c)Would it be a fraud on the husband and wife for the other party to assert that they had no beneficial interest in the property?
Did the parties form a common intention as to the ownership of the beneficial interest?
The parties for this purpose are the Second Respondent and her husband and the spouse parties. On the wife's evidence, the Second Respondent, her husband and the spouse parties, from 2009 formed a common intention that the husband and wife would live with his parents, care for them and receive title in the property.
The common intention is usually formed at the time of the transaction, referred to in cases such as Khalif & Khalif & Anor [2020] FamCA 39. That is, at the time of the purchase of the property. It may be inferred as a matter of fact from the words and conduct of the parties.
The Suburb B home was held by the husband’s father and the Second Respondent as joint tenants. They had owned the property for many years prior to the alleged common intention of the parties.
The husband’s father’s Will is in evidence. It was executed in 2009. The Will leaves all his property to the Second Respondent. Should his wife pre-decease him:
(b) Considering the payments I made to my sons [MR C] and [MR D], I have now decided to give devise and bequeath my estates in Australia in the following manner, namely:
(i) My son the said [MR KAUFER] should be given my property at [K Street, Suburb B], in the State of new South Wales […] having Folio Identifier […] together with the household effects therein contained.
(ii) My son the said [MR C] should be given 50% of my Superannuation at [Superannuation Fund 1].
(iii) My son the said [MR D] should be given the balance 50% of my Superannuation at [Superannuation Fund 1].[5]
[5] Exhibit 2R1.
The Will indicates that should the husband’s father survive his wife, the property be left to the husband, not the husband and wife. The husband receives the property to take into account previous disposition of property by the husband’s father to his other two sons. This is arguably the best evidence available of his intentions with respect to the Suburb B property.
The Will was executed at the time that the parties moved into the Suburb B property. The wife has only recently had disclosure of the Will, as I understand it, some days prior to the Interim Hearing. The Will does not support the wife's contention that the property is subject to a common intention constructive trust. It is, of course, only one piece of evidence. The wife has had limited opportunity to examine and consider it.
Has the wife shown that she and the husband have acted to their detriment?
There is no issue that the spouse parties have paid for repairs, renovations and maintenance of the home from their bank accounts. They have paid the Second Respondent's living expenses. The wife does not quantify the amounts spent by the husband and wife with respect to the property, nor the care of the Second Respondent in terms of groceries and the like.
The wife acknowledges that the Second Respondent has paid money to the husband and wife. As I have referred to, the Second Respondent suggests that is an amount of $150,000 that she has paid, and the husband suggests that is an amount of $137,879. Some expenses on his evidence were initially met by the spouse parties from their joint account and two other accounts in his name, and the Second Respondent reimbursed the funds they spent. Otherwise, it appears on the evidence that it is contended the second respondent made the payments directly. There is an issue over whether bank account records support the spouse parties borrowing money from the Second Respondent for the work on the property, such as installing wardrobes, and then making repayments to the Second Respondent. There is an issue over the way transfer of money has been characterised on the bank statements by the husband and Second Respondent in these proceedings.
The wife has given evidence of care and assistance provided to the Second Respondent since the death of the husband’s father. She and the husband have provided care and support by driving her to appointments, taking her on outings, and otherwise generally assisting her with her care, cooking and the like. This is disputed by the Second Respondent. Determining these issues will require, I accept, cross-examination at a Final Hearing.
In considering matters upon which the husband and wife could be said to have acted to their detriment, they have also had the benefit of rent-free accommodation whilst they lived with the Second Respondent, and as a consequence they have paid out the mortgage on the unit at Suburb B.
Would it be a fraud on the husband and wife for the second respondent to assert that they had no beneficial interest in the property?
To come to a conclusion about this requires a determination of the facts through a hearing. It requires a finding about the parties' intention and an understanding of what was paid by the spouse parties and the Second Respondent for maintenance and renovations on the property, and for the living expenses of the Second Respondent. That cannot be done on a summary basis in my view.
The wife argues in her Points of Claim that there may be another form of relief, through a remedial constructive trust. This is a different form of equitable relief sought than a common intention constructive trust. The relief that she seeks as a consequence of this is a transfer by the Second Respondent of title in the property to the husband and wife.
It is difficult to understand how, should the claim for equitable relief be upheld, it would result in no interest in the property being held by the Second Respondent. There does not appear to be an arguable case that title in the property owned and lived in for 40 years by the Second Respondent would pass to the spouse parties without retention of any interest by the Second Respondent.
It does not sit with the orders sought for a declaration of common intention constructive trust by the wife, and the specific basis for such an outcome is not clearly articulated by the wife. I accept that taking the wife's case at its highest, she has an arguable case for equitable relief against the Second Respondent in the terms of the orders that she seeks in her application. It is necessary for the Second Respondent to be a party to these proceedings rather than useful or expeditious, as referred to in Wayne v Dillon. The wife is seeking orders that affect the rights and interests of the Second Respondent.
An arguable case is not a strong case or an overwhelming case. Serious consideration needs to be given by the wife to the basis of the claim and a proper articulation of it. Otherwise, consequences may flow at a Final Hearing with respect to costs.
The alternate orders sought by the wife in the Points of Claim are a claim in quantum meruit for the Second Respondent to repay to the spouse parties funds expended by them on the property. It is not necessary to make a finding about this, as I have determined not to grant the Second Respondent's application for removal as set out above. Were it necessary to have regard to this aspect, it is unclear why it would require a joinder of the Second Respondent. The husband has made payments to the Second Respondent that may be considered waste and the matter dealt with within the hearing between the spouse parties. It would not, for example, ground a transfer of an interest in the property to the spouse parties.
The orders sought with respect to security for costs by the Second Respondent
I accept that the wife has extremely limited finances. Her Financial Statement discloses an average weekly income of $526, which is derived from Centrelink benefits and child support payments by the husband. She is living rent-free in the property of the spouse parties. She has 50 per cent care of the parties' children. She has savings of $871 according to her Financial Statement. She has borrowed $80,000 from her father and brother to meet her legal fees.
The Second Respondent has, on her evidence, spent $22,000 on costs to date. Those funds have been borrowed from one of her sons. There is no evidence from her about the terms of any loan or any barrier to further funds being advanced.
The Second Respondent in her affidavit disclosed savings of $37,000 and shares valued at approximately $20,000. She receives a pension payment from a superannuation interest of $3,980 per month. Her withdrawal benefit is $682,394. She does not receive any government benefit. Her evidence is that the husband does not make any payment towards outgoings, repairs or maintenance on the Suburb B property.
The pool of assets available as between the husband and wife is the Suburb B apartment with an estimated value of $800,000, the husband's superannuation interest of $681,000 and the wife's superannuation interest of $81,000. Those are the primary assets, it appears, leaving aside the disputed interest on property.
The husband's weekly income is $1,461 net according to his Amended Financial Statement. He meets the rates and levies on the Suburb B apartment where the wife lives, and pays child support in total of $447 per week. He has savings of $6,000.
I accept that the wife does not have the ability to meet a payment for security for costs to the Second Respondent. The wife has suggested that if the court is minded to order security for costs, an order for litigation funding or interim property settlement could be made against the husband in favour of the wife, and those funds could be used by the wife for payment to the Second Respondent.
The husband does not have any identifiable pool of funds from which he could make a payment for costs to the wife. He has borrowed $45,000 from one of his siblings to meet his own costs.
If an order for costs is ultimately made against the wife in favour of the Second Respondent, there would be sufficient funds to meet the claim as it is currently articulated of $100,000. The Second Respondent has the capacity to meet her own legal fees on the evidence available, although she chooses to do so by borrowing from her son at the present time.
I therefore dismiss the Second Respondent's Amended Application in Proceedings filed 5 August 2024.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 11 December 2024
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