Searle and Pencious

Case [2013] FamCA 756


FAMILY COURT OF AUSTRALIA

SEARLE & PENCIOUS [2013] FamCA 756
FAMILY LAW – COSTS – Application by wife for security of costs – Application Granted

FAMILY LAW – COSTS – Application by wife for costs of the costs application – Application Granted

Family Law Act 1975 (Cth) ss 117 and s 117(2)
Woodley & Time and Anor [2008] FamCA 162
Gerber & Bradley (Fmly Gerber) and Ors (Security for Costs) [2011] FamCAFC 206
Fenton & Marvel [2012] FamCAFC 150
APPLICANT: Ms Searle
RESPONDENT: Mr Pencious
FILE NUMBER: MLC 11069 of 2008
DATE DELIVERED: 13 September 2013
PLACE DELIVERED: Hobart
PLACE HEARD: Melbourne
JUDGMENT OF: Benjamin J
HEARING DATE: 31 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wood
SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyer
COUNSEL FOR THE RESPONDENT: Mr Carlile
SOLICITOR FOR THE RESPONDENT: Altona Legal

ORDERS

  1. On or before 28 August 2013 the Wife shall pay to the solicitor for the Husband and to her solicitor the sum of $157,833.79 out of the monies otherwise payable by her to by the Husband pursuant to and in partial satisfaction of the property order made 28 May 2013 that she pay the Husband $346,720.  Such sum of $157,833.79 is to be held as additional security for the costs payable but not yet finally determined pursuant to a costs order made 5 April 2012 in these proceedings (plus interest accrued on such costs, any costs of the assessment process and the costs of this application in a case); and such payment shall be subject to the following:-

    a.   The solicitor for the Husband and the solicitor for the Wife shall, within seven (7) days of the date of this order, open with a bank an interest bearing account in their names as trustee for the Husband;

    b.   The sum of $157,833.79 and accumulated interest shall remain in such trust account and shall be applied in payment of the costs order/s.  Once the quantum of the costs pursuant to the April 2012 order has been finally determined together with any costs of the assessment, costs of this application and any interest, the amount of those costs and interest shall be paid out of the trust account to the Wife and the balance shall be paid to the Husband.

  2. Leave is given to the parties to apply in relation to this order on the giving of seven (7) days notice to the other party and the Court, such leave to apply for a period of one (1) year from the date of this order or such other time as is determined within that one (1) year period.

  3. The Husband must pay the costs of the Wife in respect of this security for costs application on a party/party basis as agreed or in default of agreement as assessed under the Family Law Rules 2004 (Cth).

    IT IS CERTIFIED  

  4. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of…

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Searle and Pencious [2013] FamCA 756
Case
[2013] FamCA 756
Decision Date

CaseChat Overview and Summary

In the matter of *Searle and Pencious*, Benjamin J considered an application concerning the payment of costs in family law proceedings. The dispute revolved around the wife's obligation to pay a sum of money to the husband pursuant to an earlier property order, and how a portion of that sum should be secured for the husband's costs, which were yet to be finally determined.

The primary legal issue before the court was whether to grant the husband's application for the wife to pay a specific sum of money into a trust account as additional security for his costs. These costs stemmed from a prior order made in April 2012, and the quantum had not yet been finally assessed. The court also had to determine the terms upon which such security should be held and the ultimate disposition of the funds and any accrued interest.

Benjamin J reasoned that it was appropriate to provide security for the husband's costs, given their undetermined nature. The court ordered that the wife pay $157,833.79 to her solicitor and the husband's solicitor, to be held in a joint interest-bearing trust account. This sum, along with any accrued interest, was to be applied towards the payment of the husband's costs once they were finally assessed. Any remaining balance after the costs were satisfied was to be paid to the wife, with the husband receiving the remainder. The court also granted leave for either party to apply further regarding the order within one year. The husband was ordered to pay the wife's costs of this specific security for costs application.

Orders

Orders of the court

1.

On or before 28 August 2013 the Wife shall pay to the solicitor for the Husband and to her solicitor the sum of $157,833.79 out of the monies otherwise payable by her to by the Husband pursuant to and in partial satisfaction of the property order made 28 May 2013 that she pay the Husband $346,720. Such sum of $157,833.79 is to be held as additional security for the costs payable but not yet finally determined pursuant to a costs order made 5 April 2012 in these proceedings (plus interest accrued on such costs, any costs of the assessment process and the costs of this application in a case); and such payment shall be subject to the following:-

a. The solicitor for the Husband and the solicitor for the Wife shall, within seven (7) days of the date of this order, open with a bank an interest bearing account in their names as trustee for the Husband;

b. The sum of $157,833.79 and accumulated interest shall remain in such trust account and shall be applied in payment of the costs order/s. Once the quantum of the costs pursuant to the April 2012 order has been finally determined together with any costs of the assessment, costs of this application and any interest, the amount of those costs and interest shall be paid out of the trust account to the Wife and the balance shall be paid to the Husband.

2.

Leave is given to the parties to apply in relation to this order on the giving of seven (7) days notice to the other party and the Court, such leave to apply for a period of one (1) year from the date of this order or such other time as is determined within that one (1) year period.

3.

The Husband must pay the costs of the Wife in respect of this security for costs application on a party/party basis as agreed or in default of agreement as assessed under the Family Law Rules 2004 (Cth).

IT IS CERTIFIED

4.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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