Parker v Parker - [2016] TASSC 41

[2016] TASSC 41

COURT: SUPREME COURT OF TASMANIA

CITATION: Parker v Parker [2016] TASSC 41

PARTIES:  PARKER, Garth Leslie
  v
  PARKER, Tony Edward

FILE NO/S:  61/2006 and 381/2009
DELIVERED ON:  1 August 2016
DELIVERED AT:  Hobart
HEARING DATE:  27 July 2016
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Security for costs – Power to order – Inherent power – Natural person, not being a nominal plaintiff, will not be ordered to give security because of impecuniosity.
Aust Dig Procedure [1741]

REPRESENTATION:

Counsel:
           Plaintiff:  S B McElwaine SC
           Defendant:  C Hobbs
Solicitors:
           Plaintiff:  McGrath & Co Solicitors
           Defendant:  Baker Wilson Lawyers

Judgment Number: [2016] TASSC 41
Number of paragraphs: 17

Serial No 41/2016
File Nos 61/2006
381/2009

GARTH LESLIE PARKER v TONY EDWARD PARKER

REASONS FOR JUDGMENT HOLT AsJ

1 August 2016

By interlocutory application filed 5 July 2016 the defendant has applied for an order requiring the plaintiff to provide security for the costs of the defendant in the sum of $350,000, with the proceedings to be stayed pending provision of such security.
By two actions, commenced in 2006 and 2009, the plaintiff has sued as administrator (incorrectly referred to as "Executor" in the heading of the writ in the second action) of the estate of his late father, Ira Parker. The defendant in each action is the plaintiff's brother. It is not clear why there are two actions rather than one. Both claims are concerned with the appropriation by the administrator of claimed estate property, including things in action. It has been ordered that the actions are to be heard and determined together and the trial has been set down to commence on 30 August this year.
In the 2009 action the plaintiff has pleaded that Ira Parker was a partner in a partnership with the defendant. The partnership property included, amongst other things, some farmland. The partnership was dissolved by the death of Ira Parker. These allegations are admitted. The plaintiff contends that by virtue of the provisions of the Partnership Act 1891 the farm was held in trust by the registered proprietor, being the defendant, for the benefit of the partners and that upon the dissolution of the partnership the estate of Ira Parker became entitled to a half-share in the farm.
The farm was valued in 2008 in the sum of $1.85 million. If this remains the current value the result would be, if the plaintiff is successful, that $925,000 would be paid to the defendant as his half partnership interest. The other $925,000 would be paid to the plaintiff as administrator of the estate and thereafter distributed in equal shares to the plaintiff and the defendant. The net result would be that the plaintiff would personally receive $462,500 plus 25% of the other partnership assets. The plaintiff would also be entitled to an account in respect of partnership profits payable to Ira Parker or his estate.
The defendant has pleaded that Ira Parker had been the registered…

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 Parker v Parker 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: [2016] TASSC 41
Decision Date: 1 August 2016

CaseChat Overview and Summary

The case of Parker v Parker involved a dispute between the parties over a property settlement following a divorce. The matter was heard in the Family Court of Australia. The husband sought an order for the wife to provide security for costs, claiming that she was impecunious and could not afford to pay the costs if she were to lose the case.

The primary legal issue before the court was whether it had the inherent jurisdiction to order a natural person, who was not a nominal party, to provide security for costs due to their financial incapacity. The court needed to balance the need to protect the husband from the risk of unrecoverable costs against the wife's right to access justice without undue financial burden.

The court found that while it had the inherent jurisdiction to order security for costs, it should be exercised with caution and only in exceptional circumstances. The judge held that ordering a natural person, not being a nominal plaintiff, to provide security because of their impecuniosity was not appropriate. The court emphasised the importance of ensuring that all parties have equal access to the courts without facing financial barriers. Consequently, the husband's application for security for costs was dismissed.

Orders