Palma & Caleffi and Anor (Security for Costs)

Link copied
Case Copied 18 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Palma & Caleffi and Anor (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
[2011] FamCAFC 174
Decision Date

CaseChat Overview and Summary

In Palma & Caleffi and Anor (Security for Costs), the applicant sought security for her costs in an appeal against property settlement and costs orders. The respondents, who are executrices of the late husband’s estate, opposed the application for security, arguing that it should not be granted either against the estate or against them in their personal capacity.

The primary legal issue before the court was whether there were any circumstances justifying an order for security for the applicant's costs in the appeal. The court considered whether the applicant met the criteria necessary to secure such an order, including the applicant’s ability to satisfy the costs and the likelihood of the respondents being able to pay any awarded costs. The court also examined the executrices' personal financial circumstances and their capacity to pay the applicant's costs.

The court determined that there were no circumstances justifying an order for security either against the estate or the respondents in their personal capacity. It held that the applicant had not demonstrated the necessary criteria to warrant such an order. Consequently, the application for security was dismissed. The applicant was ordered to pay the respondents' costs of and incidental to the application, which were fixed at $4000, with this amount to be offset against any costs awarded in favour of the applicant against the respondents in a previous decision. Execution of the order for costs was stayed pending the finalisation of the appeal in the related proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.