R & R
[2006] FamCA 808
•23 August 2006
FAMILY COURT OF AUSTRALIA
| R & R | [2006] FamCA 808 |
FAMILY LAW – APPEAL – SECURITY FOR COSTS
| Family Law Act 1975 Family Law Rules 2004 |
Jones and Jones (2001) FLC 93-080
APPLICANT: R
1st RESPONDENT: R
2nd RESPONDENTS: GR
NR
GD P/LC P/L
3rd RESPONDENTS: RE P/L
RMS
FILE NUMBER: SY 2153 of 2001
APPEAL NUMBER: EA 16A of 2006
EA 16B of 2006
EA 16C of 2006
DATE DELIVERED: 23 August 2006
PLACE DELIVERED: Canberra
JUDGMENT OF: Finn, May and Boland JJ
HEARING DATE: 25 July 2006
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 10 January 2006
SOLICITOR FOR THE APPELLANT: Adrian Twigg & Co
COUNSEL FOR THE APPELLANT: Mr Beaumont
SOLICITOR FOR THE 1st RESPONDENT: Ms Manolakos of CM Lawyers
SOLICITOR FOR THE 2nd RESPONDENT: Watts McCray
COUNSEL FOR THE 2nd RESPONDENTS: Mr Jackson
COUNSEL FOR THE 3rd RESPONDENTS: Mr Jackson
Orders
That the wife be granted an extension of time until 25 July 2006 to file amended applications against the husband, GR, NR, GD P/L, C P/L, RE P/L and RMS for security for her costs in relation to appeals No.s EA 16A of 2006, EA 16B of 2006 and EA 16C of 2006.
That within 14 days of the date of this order, the husband pay by way of security for the costs of the wife in appeal No. EA 16A of 2006 the sum of $45,000 to Messrs Adrian Twigg & Co solicitors, to be held by that firm upon trust to abide further order of the Court.
That in the event the husband fails to comply with Order 2 of these orders then appeal No. EA 16A of 2006 shall be permanently stayed.
That the wife’s applications against GR, NR, GD P/L, C P/L, RE P/L and RMS for security for her costs in relation to appeals No.s EA 16B of 2006 and EA 16C of 2006 be dismissed.
That the costs of all parties of and incidental to the applications for security for costs which are the subject of these orders, be reserved as costs in the appeals referred to in Order 1 of these orders.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
APPEAL NUMBER: EA 16A of 2006; EA 16B of 2006; EA 16C of 2006
FILE NUMBER: SY 2153 of 2001
| R |
Applicant
And
| R |
1st Respondent
And
| GR NR |
GD P/L
C P/L
2nd Respondents
And
RE P/L
RMS
3rd Respondents
REASONS FOR JUDGMENT IN RELATION TO APPLICATIONS FOR SECURITY FOR COSTS
introduction
On 10 January 2006 Rowlands J made orders for property settlement in proceedings between the husband and the wife which had been heard over a period of some 24 days in September and December 2002 and in November 2005.
A number of other persons and companies had on the application of the wife been joined in the proceedings, including GR and NR (being the husband's parents); GD P/L and C P/L (being two companies associated with the husband's father); RE P/L (in liquidation) (being a company controlled by the husband) and RMS (being the liquidator of that company). The husband’s father and companies associated with him were creditors of the company now in liquidation.
The orders made on 10 January 2006 which are relevant for present purposes are as follows:
1.That [RE P/L] (in liquidation) and/or the liquidator of [RE P/L] (in liquidation) forthwith execute a Deed of Assignment to assign to the Wife any entitlement it has in any debt owed to it by, or cause of action it has against, each of [S P/L], [GR], [NR], [GD P/L], and [C P/L].
2.That the Husband do all acts and things necessary to transfer to the Wife all of his entitlements in the [R] Family Trust and further, if requested to do so by the Wife in writing, cause to be transferred to the Wife all of the entitlements that the said trust may have in [S P/L], and then if requested to do so by the Wife in writing resign as trustee and appoint the Wife as trustee of the said trust, And [sic] thereafter be permanently restrained from exercising his power of appointment or removal in relation to the trust.
3.And Declared that the Wife (subject to Order 11 hereof) is entitled to one half of any profits arising out of the patents or other intellectual property relating to the conversation [sic] of waste material to building products and further order that the Husband account and (subject to Order 11 hereof) pay to the Wife one half of any profits received in respect of the intellectual property of the various companies known as [NT P/L], [NC SARL], [B P/L] and related entities.
…
5. That each of:
(a)the Husband’s father…,
(b)the Husband’s mother…,
(c)[RE P/L] (in liquidation),
(d)[RMS] as either liquidator or administrator of [RE P/L] (in liquidation),
(e)[GD P/L],
(f)[C P/L],
(g)[MI P/L],
(h)[NT P/L], and
(i)[NC] SARL.
be restrained pending further order from commencing, maintaining, or pursing any claims, actions or suits against the Husband, the Wife, or [RE P/L] (in liquidation), including, without limiting the generality thereof, any actions in relation to any director’s loan accounts (whether joint or individual), or any actions arising from any assertions of insolvent trading by either [the husband] and/or [the wife].
6.That pursuant to s90AE(1)(b) of the Family Law Act, that in respect of any or all of the alleged indebtedness of the Wife to the entities and persons referred to in Order 6 [sic] hereof, the Husband be substituted for the Wife, and be solely responsible for the indebtedness.
7.That pursuant to s106B of the Family Law Act:
(a)That the allotment of shares in [S P/L] … on or about 31 October 2003 comprising 20,000 ordinary shares to [C P/L]…, and 10,000 ordinary shares to [HPR P/L]… be set aside.
(b)That [S P/L] forthwith cancel any share certificates issued in respect of the allotment referred to in (a) and expunge the said allotted shares from the share register.
…
9.That pursuant to s90AE(1)(b) of the Family Law Act [RE P/L] (in liquidation) shall forthwith do all acts and things necessary to substitute the Husband for any indebtedness to that company by the wife pursuant to any loan account or as a consequence of any alleged breach of the Corporations Law in respect of alleged insolvent trading.
…
11.That the Wife’s entitlement to profits pursuant to Order 3 above be limited in amount to the sum of:
(a)any balance outstanding in respect to the sum of $4,417,406 referred to in the final paragraph of the Reasons for Judgment of 10 January 2006, plus
(b)any costs ordered in favour of the Wife in respect of these proceedings including their enforcement, plus
(c)interest on sums outstanding referred to in (a) and (b) above, at the rate of interest prescribed by the Family Law Rules or as otherwise ordered.
On 7 February 2006, notices of appeal were filed:
a)by the husband against orders 2, 3, 6, 9, and 11;
b)by the husband’s father, the husband’s mother, GD P/L, and C P/L against orders 1, 5, 6, and 7; and
c)by RE P/L (in liquidation) and the liquidator against orders 5, 6, and 9.
On 24 April 2006 applications were filed by the wife against all of the three above mentioned appellants, or groups of appellants, seeking orders for security for her costs in relation to the appeals. The orders sought in each of the wife’s applications were in the following virtually identical terms:
1.Order that within 14 days of order the appellants do pay to Messrs Adrian Twigg & Co solicitors by way of security for costs, to be held by that firm upon trust to abide further order of the court, the sum of $100,000.00
2.That in the event that the appellant fails to comply with Order 1, in whole or in part, within the time stated then appeal number EA 16 of 2006 shall be and is permanently stayed.
3.That as an alternative to order 1 hereof the appellants conjointly with [the other two appellants or groups of appellants] pay to Messrs Adrian Twigg & Co solicitors by way of security for costs to be held by that firm upon trust by further order of the court the sum of $100,000.
4.Order that the appellant pay the costs of and incidental to this application.
A response was filed on behalf of the husband’s father on 9 June 2006 seeking the dismissal of the wife’s application for security.
A response was filed on behalf or the husband on 13 July 2006 which can be read as also seeking the dismissal of the wife’s application for security.
The wife’s applications for security were heard by us on 25 July 2006. These are our reasons for judgment in relation to those applications.
We mention at this point that pursuant to leave given by us at the hearing on 25 July 2006, the husband’s father filed an Amended Response on 26 July 2006 still seeking dismissal of the wife’s application but also seeking that in the event that we made an order for security against him or his associates or against the company in liquidation or the liquidator, that we order that he provide security by way of bank guarantee, or again in the alternative, that any sum ordered to be paid should be paid into his solicitors’ trust account pending further order.
The need for an extension of time for the applications for security
Rule 22.49 of the Family Law Rules 2004 (‘the rules’) provides that a respondent to an appeal may apply for security for costs within 21 days after the service on the respondent of the notice of appeal.
We are not aware of the date or dates on which the respondent wife was served with the notice of appeal of any of the three appellants (or groups of appellants). However, it can be assumed that by 24 April 2006 (when the applications for security were filed) that the 21 day period required by the rules had expired. This is because at the hearing before us on 25 July 2006, amended applications were filed in Court on behalf of the wife seeking that the time for making such applications be extended.
Although little was put to us on behalf of the wife by way of explanation for her failure to comply with the time period specified by the rules, little was put on behalf of any of the appellants in opposition to the grant of an extension of time.
In these circumstances, given that it is the wife who raised the need for an extension of time, and given also the strength of the wife’s case (regardless of its ultimate success against any of the appellants), we propose to grant the wife the necessary extensions of time in respect of all three applications.
principles governing applications for security for costs
The power in this Court to make an order for security for costs is to be found in s 117(2) of the Act, which is in the following terms:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
The provisions of s 117(2A) are as follows:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The authorities establish that in exercising the discretion to order security, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s117(2A), the following matters:
a)the prospect of success of the litigation;
b)whether the claim for security is made bona fide;
c)whether or not an order for security would stifle the litigation;
d)whether or not the litigation may involve a matter of public importance;
e)whether or not there has been a delay in bringing the application for security;
f)whether there would be difficulty in enforcing an order for costs
(Luadaka v Luadaka (1998) FLC 92-830; Jones and Jones (2001) FLC 93-080; Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116.)
the wife’s financial circumstances
Before considering the wife’s claims for security against each appellant or groups of appellants, it will be convenient to consider her financial circumstances.
For this purpose, we were referred by the wife’s Counsel (without objection) to her affidavit sworn 9 August 2005. In that affidavit the wife testified:
·that she has the care of the three children of the marriage;
·that despite the husband having a nominal child support obligation of $21.00 per month, she receives no child support from him;
·that she had at the time of swearing the affidavit recently done some work as a film extra for which she expected to be paid about $500;
·that she had been receiving single parent’s pension for some time and also Family Allowance; and
·that she relied very heavily on borrowings from her family and that at the time of the affidavit owed her parents “more than $557,453.83”.
It emerges from the reasons for judgment of the trial Judge that the wife is in occupation of the former matrimonial home, and that she claims as against the husband’s trustee in bankruptcy a 83.57% interest in the agreed value of that home, that agreed value being $1,400,000 (which is, however, subject to a mortgage of $280,000).
Although under his Honour’s judgment the wife was to receive or retain assets to a value of $4,417,406 (including her interest in the net value of the home), her solicitor stated in his affidavit filed 24 April 2006 that the orders of the trial Judge had not been complied with although no stay had been sought. We understood Counsel for the wife to confirm that this remained the position at the hearing before us.
We are thus able to conclude that at least until the property settlement proceedings between the husband and the wife are concluded, the wife’s financial circumstances are poor. For present purposes, it is also relevant to note that the trial Judge found in his judgment that the wife had already paid in the property settlement proceedings legal fees amounting to $459,147.
With this conclusion concerning the wife’s financial circumstances in mind, and noting also that we do not understand it to have been suggested that the wife’s applications for security are made other than on a bone fide basis, we turn to consider the wife’s applications against each of the appellants, or groups of appellants, for security for her costs in relation to the appeals.
the application against the husband
The trial Judge recorded in his judgment that on 28 November 2002, while the property settlement proceedings were part heard, the husband became bankrupt on his own petition. In an affidavit sworn 20 July 2006, apparently in support of his response seeking dismissal of the wife’s application for security, the husband stated that he had been discharged from bankruptcy on 28 November 2005 (which was after the conclusion of the hearing before the trial Judge). However, he went on to state, apparently with reference to the wife’s claim for security in the sum of $100,000, that he “would be unable to provide such a large sum of money to the Court”. (Paragraph 6 of the affidavit).
Moreover, we were told (without objection) by the solicitor appearing for the husband that the husband could not raise $100,000 to meet a security order, although he could pay one third of that amount within a 28 day period.
Given these admissions by and on behalf of the husband, it can be concluded that the husband may well not be able to meet any costs order – at least of any significant amount – which might be made against him in favour of the wife should his appeal be unsuccessful.
While the authorities recognise that, as a general rule, mere impecuniosity of a litigant, who is a natural person, will not of itself be a basis for ordering that person to lodge security, there is an exception to this general rule in the case of appeals, as was said by Ellis and Mullane JJ in their joint judgment in Jones:
21.It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch D 34 at 38, J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Ltd (unreported, Federal Court of Australia, 1 July 1993).
22.The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.
23.If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. …
We turn then to consider the merits of the husband’s appeal.
In the grounds of appeal contained in the husband’s notice of appeal which he apparently drafted without the benefit of legal advice, the husband endeavoured to address each of the orders which he wished to appeal, but he did so in terms which are more in the nature of assertions of fact rather than recognizable or competent grounds of appeal. Out of fairness to the husband, we now set out those grounds:
1.Order 2. That the Judge erred in his judgement [sic] and that the [R] Family Trust does not legally hold the share or has no legal right to the funds in [S P/L] which the Judge ordered the entitlements to, due to the fact that they are not part of the marital pool and where [sic] paid by a company in liquidation [RE P/L] and no tax has been paid on these funds.
2.Order 3. That the Judge erred in his judement [sic] and made orders for payment to the wife at where [sic] [NT P/L] and [NC] SARL where [sic] never made parties to the proceedings and where [sic] clearly shown not to have ever had any share holdings owned by the ex-wife or myself the husband. The Judge erred in his understanding of the patents and their ownership. My new Trustee Mr. [J] being appointed to my estate by the Creditors on the 8th Feb 2006 will be persuing [sic] the monies paid to [S P/L] in this appeal on behalf of the [R] Family Trust from [RE P/L] under my indemnity as the Trustee at the time.
3.Order 6. That the Judge erred in his judgement [sic] because he had precided [sic] over the application by the ex-wife to annul my bankruptcy. Justice Rowlands found that I was bankrupt and dismissed the annulment application and therefore knew full well that my entire estate vests with my Trustee for 20 years and therefore, can not be substituted for the ex-wife to pay her indebtedness totalling $1,800,000. The ex-wife is being persued [sic] in the Supreme Court for these debts which Justice Rowlands gave leave to the liquidator to persue [sic]. Most importantly the Judge erred because he can not substitute me for a debt when I clearly have no possibility to pay the debt owed to the creditor for the wife.
4.Order 9. Same reason as for the appeal against Order 6.
5.Order 11. Same point of appeal for Order 3. The court can not make orders against a party that was not joined to the proceedings and is not trading and where I am not a share holder in the commpany [sic] so as to ever receive any distribution of profit that could be shared with the ex-wife.
6.I ask permission to amend this form after I have had a chance to reread the transcripts and get leagal [sic] advise [sic].
On 28 February 2006 the husband filed a pre-argument statement as is required by the rules. Again in that statement the husband endeavours to address each order appealed. But he then goes on to largely repeat what was said in his grounds of appeal with respect to each order appealed, although with some additional factual assertions or purported assertions of law.
Again, as in his grounds of appeal, the husband seeks in his pre-argument statement “permission to amend this form after having the opportunity to re-read the proceedings transcript and seek legal advice”.
At the hearing before us on 25 July 2006, the husband was represented by a solicitor. But it is, in our view, very significant for present purposes that the solicitor appearing for the husband did not seek to file, or indeed even foreshadow the filing of, an amended notice of appeal which might contain recognizable or competent grounds of appeal.
We cannot discount that the complaints which can be gleaned from the husband’s grounds of appeal or his pre-argument statement might not be able to be presented as proper grounds of appeal, and that if so presented, that such grounds might not have some prospect of success.
However, in our view, it would be unjust to require the wife to continue to have to prepare to defend this appeal on the basis of the husband’s existing notice of appeal (with the uncertainty inherent in it) without some security for the costs she will incur, particularly given that the appeal may ultimately fail because of lack of intelligible grounds of appeal on the part of the husband.
As we have concluded earlier, the husband’s financial situation is such that he may well not be able to meet any order of any substance made against him for costs. We draw attention also in this regard to the following statement which appears in the husband’s pre-argument statement:
Also, in his corpus [sic] state as a bankrupt, the Husband does not possess the means to be burdened with nor the legal obligation to become responsible for the liabilities owed by the Wife[.]
Accordingly, we consider that the husband should be required to lodge security for costs that he may ultimately be ordered to pay in the event that his appeal is unsuccessful. We are not persuaded that the fact that the wife may owe, or ultimately be found to owe, monies to the husband on account of her unsuccessful application to annul the husband’s bankruptcy (which was a matter relied upon by the husband in opposition to the wife’s application for security), provides a reason for not ordering the husband to lodge security in respect of the wife’s costs which will be incurred on account of the husband’s appeal against the property settlement orders.
As to the amount of security which the husband should lodge, the wife’s solicitor in an affidavit filed at the hearing on 25 July 2006 stated that:
·the Appeal Book comprises 25 volumes;
·that all parties agree that the hearing of the appeal will take in the order of three days; and
·that on the basis of nine days for preparation and the three days for hearing, fees for the wife’s Senior Counsel (at $6,600 per day) will be between $59,400 and $79,200 and for her Junior Counsel (at $3,000 per day) between $29,7000 and $39,600; and that the solicitor’s own costs will be $11,880.00.
We understood the husband’s solicitor to concede that these estimates were within a usual or expected range. Nevertheless, we think it accurate to say that when this Court has in past cases fixed a sum for security for the costs of an appeal, it can be seen to have done so broadly on the basis of the fees of a solicitor and Junior Counsel for a hearing of one day or less.
In the present case, given the length of the trial and consequent volume of the appeal books, the agreement that the appeal is likely to require a three day hearing, and the undoubted necessity for Senior and Junior Counsel, we consider that a sum of $45,000 should be deposited by the husband by way of security.
the application against the husband’s father and other associated persons
In his affidavit filed 9 June 2006 in support of his response seeking the dismissal of the wife’s application for security, the husband’s father stated:
5.In the event the Appeals lodged on behalf of myself, my Wife, [GD P/L] and [C P/L] are unsuccessful, and I am ordered to pay costs in relation to the Appeal, then I am able to pay those costs from my own resources.
In the preceding paragraph of his affidavit, the husband’s father stated that he was bearing the costs of providing the transcripts for the appeal books and of the preparation of the appeal books.
None of this evidence from the husband’s father concerning his capacity to meet a costs order or to fund the preparation of the appeal books was challenged.
However, it was the cogent submission of Counsel for the wife that the purpose of an order for security is to ensure that a successful respondent to an appeal in whose favour a costs order is made, is not deprived of the benefit of that order not only on account of the impecuniosity of the unsuccessful appellant, but also because the unsuccessful appellant may have put his or her funds beyond the reach of the Court.
In support of this submission, Counsel provided us with a written summary of the many adverse findings which the trial Judge had made against the husband’s father (as well as against the husband and entities controlled by the husband and/or his father) and which, in short, led his Honour to conclude that the husband’s father together with the husband had “acted together to defeat the interests of the Wife” (paragraph 167 of the judgment of the trial Judge). Indeed, those adverse findings by the trial Judge against the husband, his father and their associates were one of the principal reasons for the wife’s applications for security against all appellants (apart from the liquidator).
While there is considerable force in the proposition that an order for security will be justified against an appellant who has been found to have endeavoured to put assets beyond the reach of the Court, it must also be borne in mind that such an appellant must also be entitled to challenge that finding on appeal. This brings us to the merits of the appeal by the husband’s father and those associated with him.
The grounds of appeal contained in the notice of appeal of the husband’s father and his associates are essentially directed to the Court’s power to make Orders 1, 5, 6, and 7 and to the trial Judge’s reasoning in relation to those orders. It will be recalled that Order 6 was expressly stated to be made pursuant to s 90AE of the Family Law Act 1975 (Cth) (‘the Act’). However, it is asserted in the pre-argument statement prepared by the husband’s solicitor that the power to make orders under s 90AE does not extend to the type of orders made in this case. It is further asserted that the trial Judge conducted no analysis of those sections and that he did not expressly take into account any of the factors prescribed by the Act for the making of orders against third parties. Thus, it was submitted, that there was a failure to provide adequate reasons for the decision.
The grounds of appeal also assert a failure on the part of the trial Judge to give sufficient weight to the evidence of the husband’s father. Apparently in relation to this complaint the pre-argument statement filed on behalf of the husband’s father indicates that it will be argued on his behalf at the appeal that the evidence of the business arrangements between the husband and his father and the putting into effect of certain agreements between them, did not support a finding of conduct intended to defeat the wife’s rights.
Furthermore, before us Counsel for the husband’s father submitted that because there has so far been no decision by the Full Court in relation to the relatively new provisions contained in Part VIIIAA of the Act (“Orders and Injunctions binding Third Parties”), this appeal could be said to involve a matter of public importance.
We cannot, of course, determine whether the appeal by the husband’s father and his associates will ultimately succeed either on the issue of whether the evidence would support a finding of conduct intended to defeat the wife’s rights, or on the issue of the trial Judge’s application of the provisions of Part VIIIAA. However, these issues would certainly appear to be issues of some substance, and indeed some public importance. In these circumstances, and given the unchallenged evidence of the husband’s father concerning his financial capacity, we are not persuaded that an order for security against the husband’s father or his associates would be justified, notwithstanding the present difficult financial circumstances of the wife. We propose to dismiss the application against the husband’s father and his associates.
the application against the company in liquidation and the liquidator
No response to the wife’s application for security was filed by the company formerly controlled by the husband and now in liquidation, although Counsel appearing before us for the husband’s father and his associates informed us that he also appeared on behalf of that company and its liquidator.
The pre-argument statement filed on behalf of the husband’s father and his associates can also be read, at least in part, as explaining the case to be made on appeal by the company and its liquidator. We refer in particular to the following passage in that pre-argument statement:
…the orders affect the administration of a liquidation conducted under the provisions of the Corporations Act, 2001. They restrain the liquidator from carrying out his statutory duty to pursue actions such as loan accounts and to pursue insolvent trading cases. It is submitted that section 90AE of the Family Law Act does not extend that far….
Thus, the case of the company and liquidator would appear to be in essence a lack of power in the Court to make the orders made as well as a lack of reasoning on the part of the trial Judge to support those orders.
Such material as there is before us concerning the financial circumstances of the company indicates that they are not good. Nevertheless, given the issues to be raised on the appeal, we are not persuaded that the company and/or its liquidator should be required to lodge security. Accordingly, we will also dismiss the application against the company and the liquidator.
costs of these applications for security
We understood it to be common ground that the costs of these applications for security should be reserved as costs in the appeals. We will order accordingly, although we do so on the understanding that if the husband’s appeal should be permanently stayed on account of his failure to lodge the security ordered by us, then the wife would be entitled to make an application to us in respect of her costs of and incidental to her application against the husband for security.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court
Associate:
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