Palma & Caleffi and Anor (Security for Costs)

FAMILY COURT OF AUSTRALIA

PALMA & CALEFFI AND ANOR (SECURITY FOR COSTS) [2011] FamCAFC 174

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – where the respondents are appealing against property settlement and costs orders – where the applicant filed an application seeking security for her costs in the appeal – where the respondents are executrices of the late husband’s estate – where the applicant seeks security for costs against the respondents not only as executrices, but also personally – there are no circumstances which justify an order for security either against the estate or the respondents in their personal capacity – application dismissed – the applicant to pay the respondents’ costs of and incidental to the application 

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116
Halsbury and Halsbury [2008] FamCAFC 170
Jones and Jones (2001) FLC 93-080
Knowles & Green [2010] FamCAFC 31
Lathwell v Lathwell [2008] WASCA 256
Luadaka v Luadaka (1998) FLC 92-830
Sawer & Sawer [2007] FamCA 140
Vasiljev v Public Trustee [1974] 2 NSWLR 497

APPLICANT: Ms Palma

FIRST RESPONDENT: Ms Caleffi

SECOND RESPONDENT: Ms Falco  

FILE NUMBER: NCC 737 of 2007

APPEAL NUMBER: EA 138 of 2010

DATE DELIVERED:	25 August 2011
PLACE DELIVERED:	Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman, Thackray and Strickland JJ

HEARING DATE: 22 August 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 24 September 2010

LOWER COURT MNC: [2010] FMCAfam 1023

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingstone

SOLICITOR FOR THE APPLICANT: Marsden's Law Group

COUNSEL FOR THE RESPONDENTS: Ms Winfield

SOLICITOR FOR THE RESPONDENTS: Paul Gowran & Co

Orders

1. The application in an appeal be dismissed.

2. The applicant pay the respondents’ costs of and incidental to the application fixed in the sum of $4000, such costs to be offset against the costs awarded in favour of the applicant against the respondents on 3 November 2010.

3. Execution on the order for costs in Order 2 be stayed pending finalisation of the appeal in proceedings EA 138/2010.  

IT IS NOTED that publication of this judgment under the pseudonym Palma & Caleffi and Anor (Security for costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 138 of 2010
File Number: NCC 737 of 2007

Ms Palma

Applicant

And

Ms Caleffi

First Respondent

And

Ms Falco  

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the wife’s application filed on 20 July 2011 in which she seeks that the respondents provide $15,000 by way of security for her costs in the appeal which the respondents have filed against property settlement and costs orders made by Federal Magistrate Coates.  The wife also seeks an order that the appeal be dismissed if the sum ordered is not paid within 28 days.

2. The respondents are two of the adult children of the wife and her late…