Kenyon v Akeroyd - [2007] VSCA 50

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3798 of 2006

ELIZABETH MARY PANDELLA KENYON
	v
JASON ROBERT AKEROYD

APPLICATION ON SUMMONS

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JUDGES:	MAXWELL, P and REDLICH, JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 March 2007
DATE OF ORDER:	9 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 50	1^ST REVISION, 28 MARCH 2007

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PRACTICE AND PROCEDURE - Security for costs of appeal - Prospects of success - Appellant impecunious - Parties formerly in a defacto relationship - Dispute over property - Proceedings under Part XI Property Law Act 1958 - Where only resources available to respondent constitute subject matter of litigation or have been directed to funding the proceedings - Security refused - Rule 64.24 - Arons v McInerney (1899) 25 VLR 148 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/ Respondent	Ms B A Tulloch	Jane Curtis & Associates
For the Respondent/ Applicant	Ms L Bird	Wards Barristers and Solicitors Pty Ltd

REDLICH, JA:

This is an application under r 64.24 of the Supreme Court Rules seeking an order for security of costs. Although the summons merely states that security for costs of the appeal is sought, Ms Bird who appears for the applicant has stated that the applicant also seeks security for the order for costs already made in relation to the trial.

The applicant and the respondent were in a domestic relationship from 1998 to 2003. During that time the couple cared for two children, the first of whom was born immediately before they commenced to cohabit, the second during the period of cohabitation.

The respondent during that period and to date has primary care of the children. During their relationship there was evidence that the couple borrowed money and received support from members of their respective families in order to maintain their business venture and their residential arrangements.

The applicant and the respondent purchased a property in mid 2000 and they used that property as their principal place of residence. They also used the land for stock and the agistment of cattle. Shortly after purchasing the property the applicant commenced his own business in logging and received bookkeeping support from the respondent. After separation the respondent claimed to have used the property as her principal place of residence until sometime between September and November 2003, although there was some dispute at the trial about when precisely she vacated the property.

The applicant visited the property from November 2003 to March 2004 for unascertainable periods of time, given that the nature of his work required his travel. In March 2004 the respondent returned to the property and continued in the agistment of cattle and the business of using the land for stock.

The applicant brought an action against the respondent claiming an adjustment in the parties' respective interests in the property pursuant to Part IX of the Property Law Act 1958. The applicant sought orders that the respondent vacate the property, pay taxes and utility rates incurred during their occupation of the land…

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.

Continue reading Kenyon v Akeroyd

Details

AGLC: Kenyon v Akeroyd [2007] VSCA 50
Case: [2007] VSCA 50
Decision Date: 9 March 2007

CaseChat Overview and Summary

Kenyon v Akeroyd was a case in which the Victorian Court of Appeal deliberated on the granting of security for costs of appeal. The appellant, Kenyon, sought an appeal against the decision of the trial judge, who had ordered her to provide security for costs to the respondent, Akeroyd. The matter arose from a dispute between the parties, who were formerly in a de facto relationship, over property. The proceedings were initiated under the Property Law Act 1958. The court was required to determine whether the appellant was impecunious and whether the respondent's only resources were the subject matter of the litigation or had been directed to funding the proceedings.

The court examined whether the appellant had any means to fund the appeal and whether the respondent's only resources constituted the subject matter of the litigation. The court found that the appellant was impecunious and that the respondent's only resources were the subject matter of the litigation or had been directed to funding the proceedings. In making its decision, the court applied the principles established in Arons v McInerney. The court held that, in light of the appellant's impecuniosity and the respondent's use of their only resources to fund the proceedings, the appellant was not required to provide security for costs of appeal.

The court concluded that the appellant was not required to provide security for costs of appeal. The court's reasoning was based on the principles established in Arons v McInerney and the specific circumstances of the case. The court found that the appellant was impecunious and that the respondent's only resources were the subject matter of the litigation or had been directed to funding the proceedings. This decision was in line with the principles established in Arons v McInerney, which provide that security for costs should not be ordered where the appellant is impecunious and the respondent's only resources are the subject matter of the litigation or have been directed to funding the proceedings.

Orders