Limousin and Limousin (Security for Costs) - [2007] FamCA 1179

FAMILY COURT OF AUSTRALIA

LIMOUSIN & LIMOUSIN (SECURITY FOR COSTS)

[2007] FamCA 1179

FAMILY LAW - SECURITY FOR COSTS – Husband renewed his application for security for costs in relation to the wife’s appeal, part of which had previously been heard without the necessity to provide security – Whilst the remaining grounds appeared unlikely to succeed, the wife’s impecuniosity would mean a substantial security would stifle the appeal it is appropriate that a modest security for costs order be made

Family Law Act 1975 (Cth)

Beaumont& Cross (Security for Costs) [2007] FamCA 1129
Jones and Jones (2001) FLC 93-080; (2001) 27 Fam LR 632
Limousin & Limousin [2007] FamCA 505
Luadaka and Luadaka (1998) FLC 92-830; (1998) 24 Fam LR 340
MIL v EL (2005) FLC 93-244; (2005) 35 Fam LR 5

APPLICANT:

MR LIMOUSIN

RESPONDENT:

MS LIMOUSIN

FILE NUMBER:

MLF

10522

1996

APPEAL NUMBER:

2004

DATE DELIVERED:

28 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Kay, Warnick and Boland JJ

HEARING DATE:

11 September 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 May 2003;

24 July 2003;
18 May 2004;

25 May 2004

LOWER COURT MNC:

[2003] FamCA 769; [2003] FamCA 1449; [2004] FamCA 493; [2004] FamCA 504

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr St John SC and Mr Strum

SOLICITOR FOR THE APPLICANT:

Meerkin & Apel

ADVOCATE FOR THE RESPONDENT:

Mrs Limousin in person

ORDERS

That unless the wife within one month of the date of this order provide security for the husband’s costs of the appeal in the sum of $5,000 in a form acceptable to the Appeal Registrar at the Melbourne Registry, the appeal stand dismissed.
The costs of this application be costs in the appeal.

And the Court notes that in the event that the appeal stands dismissed the cross-appeal will be abandoned.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 36 of 2004
File Number: MLF 10522 of 1996

MR LIMOUSIN

Applicant

And

MS LIMOUSIN

Respondent

REASONS FOR JUDGMENT

This is the husband’s application for security for costs.
On 25 May 2004 the Honourable Justice Guest made an order that the husband pay spousal maintenance for a period of two years but otherwise dismissed the wife’s claims for alteration of property interests and spousal maintenance. His Honour also made other orders relating to child support.
On 22 June 2004 the wife filed a Notice of Appeal seeking to set aside Guest J’s orders and to have other orders made in their stead. The husband then filed a Notice of Cross-Appeal in relation to the spousal maintenance orders.
The wife sought to rely upon fourteen grounds of appeal. She subsequently abandoned ground three which asserted that the trial judge had erred in failing to disqualify himself from hearing the trial of the action on the basis of actual or perceived bias.
On 2 September 2004 the husband filed an application seeking that…

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.

Keep reading for free

Create a free CaseChat account to read Limousin and Limousin (Security for Costs) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FamCA 1179
Decision Date: 28 September 2007

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia considered an appeal concerning an application for security for costs. The applicants, Mr. and Mrs. Limousin, sought to appeal a decision of the Supreme Court of Western Australia that had ordered them to provide security for the costs of the respondent, Mr. Limousin, in underlying proceedings. The dispute arose from an application by Mr. Limousin for security for costs in relation to the appeal lodged by Mr. and Mrs. Limousin.

The central legal issue before the Full Court was whether the primary judge had erred in ordering the appellants to provide security for costs. This involved determining whether the appellants had demonstrated a sufficient likelihood of insolvency or a lack of assets within the jurisdiction to justify such an order, and whether the primary judge had correctly applied the principles governing applications for security for costs, particularly in the context of an appeal.

The Full Court reasoned that the primary judge had correctly applied the established principles for granting security for costs. It was noted that the onus is on the applicant for security to show that there is reason to believe the respondent will be unable to pay the costs of the proceedings. The Court found that the evidence presented by Mr. Limousin, including evidence of the appellants' financial position and their lack of unencumbered assets within the jurisdiction, was sufficient to establish a real likelihood that they would be unable to pay the respondent's costs if the appeal were unsuccessful. The Court also considered the appellants' submissions regarding their ability to meet potential costs and found them unconvincing.

The appeal was dismissed, and the order of the primary judge requiring the appellants to provide security for costs was affirmed.

Orders