P & S

[2005] FamCA 913

[2005] FamCA 913

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No EA66 of 2005
AT SYDNEY  File No SYF6202 of 2002

BETWEEN:

P
Appellant Husband
- and -

S
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  FAULKS DCJ, KAY & BOLAND JJ
DATE OF HEARING:                 24 August 2005
DATE OF JUDGMENT:             24 August 2005

APPEARANCES:  The Appellant Husband in person.

Mr Giveny of Counsel, instructed by Cluff & Sant, Solicitors, 6/149 Hawkesbury Road, Westmead, NSW 2145 appeared on behalf of the Respondent Wife.

P & S
EA66 of 2005
Coram:  Faulks DCJ, Kay & Boland JJ
Date of Hearing:  24 August 2005
Date of Judgment:  24 August 2005-09-27

Catchwords:  APPEAL – SECURITY FOR COSTS - appeal against consent property orders – limited prospects of success - appellant ordered to provide $3000 security for costs.

KAY J: 

1. This is an application for security of costs in relation to an appeal instituted by the husband against orders made by Coleman J at Parramatta on 16 May 2005 in property proceedings.  The orders were in fact made by consent.

1. By his amended Notice of Appeal the appellant seeks to argue five grounds

• “that the trial Judge erred in determination of the pool of assets for division;

• that the trial Judge erred in judicial prejudice by not allowing the appellant procedural fairness

• the trial Judge erred in accepting evidence provided by the respondent and not allowing evidence by the appellant;

• the trial Judge erred in accepting an amount of $124,969 as a total amount of pool of assets against the pool of assets of $1,448,949; and

• consent orders of 16 May 2005 were agreed under duress by appellant as two warnings were given by trial Judge upon appellant's questioning respondent's counsel on facts presented to trial Judge.  Counsel for appellant insisted to take what was on offer.  Fearing trial Judge would dismiss the case appellant hesitatingly agreed under duress.”

1. The property proceedings came after the end of a relatively short period of marriage between the parties. They commenced cohabitation in 1997 and separated in 2002. The marriage was dissolved at the end of 2004.  There are no children of the marriage. 

1. The applicant for security of costs seeks an order that the sum of $15,000 be made available and that in the event that the monies are not made available the appeal should be dismissed. 

1. The law which governs the applications relating to security for costs is not in doubt and does not require restating in the context of this application.  It has been applied in a number of recent decisions including, amongst others, the unreported decision of the Full Court in Pederson v Vega Lira (2003) FamCA 1383. I quote from that judgment where their Honours said:

“8.       The principles governing an application for security for costs have been canvassed in recent decisions of the Full Court in Luadaka v Luadaka (1998) FLC 92-830 and Jones v Jones (2001) FLC 93-080 and in the Adult Guardian…