M, PJ v W, JW

Case [2014] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

M, PJ v W, JW

[2014] SASC 87

Judgment of The Honourable Justice Bampton

4 July 2014

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

Appellant appeals against the dismissal of a claim for a division of property pursuant to the Domestic Partners Property Act 1996 (SA) – order sought striking out grounds of appeal pursuant to Rule 295 of the Supreme Court Civil Rules 2006 (SA) – grounds 1, 2 and 3 of the grounds of appeal struck out.

PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY - LACK OF MEANS

Application by the respondent for security for costs of the appeal – Court’s power to order security for costs of an appeal under Rule 295(1)(g) of the Supreme Court Civil Rules 2006 (SA) – whether special circumstances exist – appellant’s impecuniosity and limited prospects of success justify the making of an order for security – appellant to provide security for costs.

Domestic Partners Property Act 1996 (SA); Supreme Court Civil Rules 2006 (SA) r 295, r 295(1)(g), r 295(3), r 282(2)(c), referred to.
Wride v Werner [2004] SASC 211; Durham v Durham (2011) 80 NSWLR 335; Ramstrom v Baldino [2014] SASC 29; Cowell v Taylor (1885) 31 Ch D 34; Citicorp Australia Ltd v Cirillo (2003) 228 LSJS 132; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211; Sands v State of South Australia [2013] SASC 105; Fox v Percy (2003) 214 CLR 118; Hogg v Roberts (2003) 87 SASR 248; Diakos v Mason [2010] SASC 108; Melunu Pty Ltd v Claron Constructions Pty Ltd & Ors [2004] NSWSC 1064; Foxgold Pty Ltd v Paterson [2005] SASC 376; Cooper v Lees (2009) 267 LSJS 53, considered.

M, PJ v W, JW
[2014] SASC 87

Civil: Application

  1. BAMPTON J:  This is an application by the respondent, W, for an order that grounds 1, 2, 3 and 11 of the notice of appeal be struck out and an order for security for his costs of the appeal.

    The appeal

  2. The appellant, M, has appealed the decision of a District Court Judge refusing her an extension of time to institute proceedings for a division of property pursuant to the Domestic Partners Property Act 1996 (SA) (“the Act”) and dismissing her claim.

    The District Court proceedings

  3. On 4 April 2014, following a 14 day trial, the Judge held that M and W were in a close personal relationship as defined by the Act from January 2004 until September 2008. He found that M had contributed within the meaning of s 11 of the Act; but that her claim should be dismissed on the basis that her contributions have been significantly recognised and compensated for. He further found that the parties had resolved and settled the claim as between themselves in or around November 2008 and he was not satisfied…

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AGLC
M, PJ v W, JW [2014] SASC 87
Case
[2014] SASC 87
Decision Date

CaseChat Overview and Summary

In the matter of M, PJ v W, JW, the court was asked to consider the issue of providing security for costs in relation to an appeal. The respondent, W, sought an order that the appellant, M, provide security for costs in respect of the appeal. This application arose out of a larger family law dispute, with the appeal being related to an earlier judgment of the Family Court.

The primary legal issue before the court was whether the appellant should be required to provide security for costs in relation to the appeal. The court was required to consider the relevant factors in determining whether such an order was appropriate, including the appellant’s financial circumstances, the prospects of success of the appeal, and the potential prejudice to the respondent if security was not provided.

In making its decision, the court considered the affidavit evidence provided by the parties, including an affidavit from the respondent’s solicitor which estimated the costs of the appeal. The court found that the appellant’s impecuniosity and the prospects of success on appeal warranted an order for security. The court ordered that certain grounds of appeal be struck out and that the appellant provide security in the sum of $25,000 unless and until the prosecution of the appeal was stayed.

The court made an order that grounds 1, 2 and 3 of the notice of appeal be struck out. It was also ordered that the prosecution of the appeal be stayed unless and until the appellant provided a form of security to the value of $25,000 in respect of the respondent’s costs. The security was to be provided in a form acceptable to the court and to the respondent. The court indicated that it would hear from the parties as to any further orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied that M’s impecuniosity, together with her prospects of success on appeal, warrant that the order for security should be made.Conclusion W’s solicitor has deposed in his affidavit sworn 28 May 2014[18] that his estimate of solicitor and counsel fees for the appeal on a party/party basis is $27,183.08. I consider that M should provide security in the sum of $25,000.[18] FDN 6. I make the following orders on W’s application:[19]1Grounds 1, 2 and 3 on the notice of appeal filed 24 April 2014 be struck out.2Unless and until the appellant provides a form of security to the value of $25,000 in respect of the respondent’s costs, the prosecution of the appeal is stayed.3The security is to be provided in a form acceptable to the Court and to the respondent.[19] FDN 3. I will hear from the parties as to any further orders.

Ratio Decidendi

Legal Principle Established

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