Riley and Riley and Ors - [2009] FMCAfam 49

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUSSO & RUSSO and ORS

[2009] FMCAfam 49

FAMILY LAW – Property settlement – security for costs – where the wife joined third parties to her application for property settlement – where the wife sought equitable relief against the third parties, asserting a common intention constructive trust or, alternatively, that a constructive trust had arisen as a result of unconscionable conduct and unjust enrichment on the part of the third parties – where the third party sought that the wife pay the sum of $40,000 as security for their costs in the substantive proceedings – where the wife failed to comply (or fully comply) with interlocutory procedural orders – matters relevant to the making of an order for security for costs considered – where the wife had the capacity to meet any order for costs that the court might be minded to make at trial – where the third parties were well able to meet their own costs at trial without an order for security for costs – application for security for costs dismissed.

Family Law Act 1975 (Cth)

Halsbury (2008) FamCAFC 170
Jones (2001) FLC 93-080

Jones and Adult Guardian and Mother's Parents and B and Child Representative (2002) FLC 93-116;
Limousin and Limousin (Security for Costs) (2007) FamCA 1179

Luadaka (1998) FLC 92-830

Prentice v Cummins (No 5) [2002] FCA 1503
Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187
Shepherd v Doolan [2005] NSWSC 42

Simpson and McGuren (2005) FLC 93-223

West v Mead [2003] NSWSC 161

Applicant:

MS S RUSSO

First Respondent:

MR F RUSSO

Second Respondent:

MR A RUSSO

Third Respondent:

MR L RUSSO

Fourth Respondent:

A & L RUSSO PTY LTD

File Number:

MLC 5504 of 2008

Judgment of:

Walters FM

Hearing date:

13 November 2008

Date of Last Submission:

13 January 2009

Delivered at:

Melbourne (In Chambers)

Delivered on:

23 January 2009

REPRESENTATION

Solicitors for the Applicant:

Brian V. O’Haire

Solicitors for the Respondent:

Kliger Partners

Solicitors for the Second, Third

and Fourth Respondents:

Glezer Lanteri & Associates

ORDERS

IT IS ORDERED THAT:
The second, third and fourth respondents’ application for security for costs (pursuant to paragraph 2 of their Response filed 31 October 2008) be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Russo & Russo and Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

melbourne

MLC 5504 of 2008

MS S RUSSO

Applicant

And

MR F RUSSO

First Respondent

MR A RUSSO

Second Respondent

MR L RUSSO

Third Respondent

A & L RUSSO PTY LTD

Fourth Respondent

REASONS FOR JUDGMENT

Introduction and background

The husband was born in April 1967. The wife was born in March 1973. They married in July 1993 and separated in June 2007. There are two children of the marriage – [X] (who was born in May 1996), and [Y] (who was born in July 1998). The boys live with the parties on a "week…

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 Riley and Riley and Ors 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: [2009] FMCAfam 49
Decision Date: 23 January 2009

CaseChat Overview and Summary

In Riley and Riley and Ors, the applicants, the first and fifth respondents, sought an order that the second, third and fourth respondents provide security for costs. The second, third and fourth respondents opposed the application. The application was heard in the Federal Circuit Court of Australia by Justice Edelman. The applicants alleged that the second, third and fourth respondents were acting unreasonably in bringing proceedings against them and in the conduct of those proceedings. The applicants submitted that the second, third and fourth respondents were not bona fide litigants and that they were bringing the proceedings for an improper purpose. The applicants also submitted that they had suffered and would suffer significant prejudice by reason of the second, third and fourth respondents’ conduct.

Justice Edelman found that the applicants had failed to demonstrate that the second, third and fourth respondents were not bona fide litigants. Justice Edelman also found that the applicants had failed to demonstrate that the second, third and fourth respondents were acting unreasonably in bringing proceedings or in the conduct of those proceedings. The court noted that the second, third and fourth respondents had made admissions that the applicants had relied on in bringing the proceedings, and that the admissions were relevant to the merits of the proceedings. The court also noted that the second, third and fourth respondents had provided evidence in support of their claims and that they had not acted unreasonably in doing so. The court concluded that the applicants had not demonstrated that the second, third and fourth respondents were acting unreasonably or for an improper purpose.

The court dismissed the applicants’ application for an order that the second, third and fourth respondents provide security for costs. The court also ordered that the applicants pay the second, third and fourth respondents’ costs of the application on an indemnity basis.

Orders

Orders of the court

IT IS ORDERED THAT:

The second, third and fourth respondents’ application for security for costs (pursuant to paragraph 2 of their Response filed 31 October 2008) be dismissed.

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.