Keach and Keach and Anor

[2009] FamCA 895

FAMILY COURT OF AUSTRALIA

KEACH & KEACH AND ANOR [2009] FamCA 895

FAMILY LAW – COSTS – application for security for costs by 2^nd respondent against wife

APPLICANT: Ms Keach

FIRST RESPONDENT: Mr Keach

SECOND RESPONDENT: J Pty Ltd (As Trustee of the Keach Trust)

FILE NUMBER: SYF 2181 of 2006

DATE DELIVERED: 17 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 September 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance required

COUNSEL FOR THE RESPONDENTS: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

SOLICITOR FOR 2^ND RESPONDENT Esplins Solicitors

Orders

1. By consent, the order made by Registrar Cameron on 11 September 2009 for the 2^nd respondent’s Application in a Case (filed on 11 September 2009), regarding security for costs to be heard on 21 September 2009, be set aside. 

2. The Application of the 2^nd respondent filed 11 September 2009 for security for costs be dismissed.

3. The 2^nd respondent pay the costs of the wife on a party/party basis (with certification for counsel) in relation to both the applications filed 11 September 2009 and 14 September 2009, as agreed or taxed.

IT IS NOTED that publication of this judgment under the pseudonym Keach & Keach is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2181 of 2006

MS KEACH

Applicant

And

MR KEACH

First Respondent

and

J PTY LTD (AS TRUSTEE OF THE KEACH TRUST)

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the second respondent has made an application that the wife provide security for costs in the amount of $170,000, and if the wife fails to provide that security to the second respondent, then for an order that the proceedings which are due to commence next Monday be stayed as against the second respondent until the security is provided.

2. In considering security for costs, a balancing exercise is required when one has an impecunious applicant.  In this case, I am unable to say, on the material that I have before me, that the claim made by the applicant is made without any bona fides. 

3. If the order was made, it would be oppressive on the wife, in the sense that it would stifle her ability to prosecute her claim next Monday against the second respondent. 

4. I agree with counsel for the wife’s submission that the delay in bringing this application is by itself a fundamental impediment to the success of this application.  The second respondent flagged to me in November last year that this application might be made, and there was an exchange which included a comment by me, where I said that any application for security would be made by the second respondent in writing and a sufficient time ahead.  There have been multiple occasions since then where this application could have been brought.  To bring it at a date seven days before the trial is conduct that disentitles the second respondent to the orders that they seek, particularly given that their excuse for delay is that they have only just found out that the wife’s father is funding the wife’s litigation.  That assertion can not be sustained in light of the content of the wife’s father’s affidavit which was served on the second respondent in March and prior to 1 April 2009 when the matter was specially listed for hearing on 21 September.  The applicant gives no other excuse for the delay.

5. I have also, in discussions with the solicitor for the second respondent, indicated that an absolute submission that an impecunious litigant who is funded by somebody else provides no target for a successful costs application can not be sustained.  The authorities suggest that if somebody does fund unmeritorious litigation, then they, in appropriate circumstances, can have costs orders made against them. 

6. I will not make any comment as to the quantum of the costs that have been claimed, except to say that it is unclear on the evidence before me as to how it might be expected that orders in that amount might be made. 

7. The second respondent’s application in a case filed on 11 September 2009 will be dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  18 September 2009