Singer v Berghouse - [1993] HCATrans 199

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S58 of 1993
B e t w e e n -
BERNICE SINGER

Appellant/Respondent

and
MAXWELL BERGHOUSE

Respondent/Applicant

Application for security for
costs

GAUDRON J

(In Chambers)

Singer

7/7/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 JULY 1993, AT 11.21 AM

MISS E.A. COHEN:

May it please the

Court, I appear for the

applicant in the notice of motion and the
respondent on the appeal. (instructed by Maxwell
Berghouse)

HER HONOUR:	That in effect is the executor, is it not?
MISS COHEN:	Yes.
MR M.M. HILBERY:	May it please Your Honour, I appear for

the appellant. (instructed by T. Freilich)

Your Honour, there is an affidavit to be filed

in opposition to the affidavit in support of the

application. Might I hand that up. A copy has
been served on my friend's solicitors.

HER HONOUR:	You have no objection to this course?
MISS COHEN:	No objection to the affidavit being filed,

Your Honour.

HER HONOUR:	Yes, Miss Cohen?
MISS COHEN:	Your Honour, the applicant moves on the summons

dated 25 June and the affidavit of
Maxwell Berghouse sworn 25 June in support of that
summons. It is a simple application for security
for costs of the appeal on the classic ground that
the appellant is resident outside the Commonwealth
of Australia; she is resident in New York and all

her assets are in New York. The appellant does not

deny that. The appellant is seeking $12,500
security for the costs of this appeal. That is
really the - - -

HER HONOUR:

Is there any evidence as to the reasonableness of that amount?

MISS COHEN:

It is contained in the affidavit of

Maxwell Berghouse sworn 25 June, which I understand
has been filed in the Court.

HER HONOUR:

I must say some of us have clearly made wrong

career choices.

MISS COHEN:

Your Honour, my instructing solicitor has

deposed in his affidavit that costs on the
application for leave to appeal have already been
incurred in the sum of $7500. There is no claim in
relation to those costs in relation to the appeal.

HER HONOUR:

There must be, must there not? You are asking

for $12,500 in any event. But perhaps I should not
let my eyebrows rise so noticeably at the way
things happen in practice. That aspect is a

Singer

MISS COHEN

7/7/93

detail. The real point you have got to face is the nature of the case itself in circumstances in which there has been a grant of special leave. It is not
a case

MISS COHEN:

It is a case, Your Honour, where the appellant

has failed in the Supreme Court; the appellant has
failed once again in the Court of Appeal - - -

HER HONOUR:

And has been granted special leave to appeal to

this Court.

MISS COHEN:	Yes, Your Honour.
HER HONOUR:	Which would not have…

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.

Continue reading Singer v Berghouse

Details

AGLC: Singer v Berghouse [1993] HCATrans 199
Case: [1993] HCATrans 199
Decision Date

CaseChat Overview and Summary

The applicant, the executor of an estate, sought security for the costs of an appeal from the respondent, who was resident in New York. The respondent did not dispute her residency outside the Commonwealth or that her assets were located there. The applicant sought $12,500 in security for the costs of the appeal, supported by an affidavit detailing incurred costs and the respondent's substantial overseas assets.

The High Court was required to determine whether to grant the application for security for costs. This involved considering the respondent's non-residency and the quantum of the security sought, while also taking into account the nature of the case itself, particularly in circumstances where special leave to appeal had already been granted. The court had to balance the usual grounds for security for costs against factors that might militate against such an order, especially given the appellant's success in obtaining special leave.

The court acknowledged that the respondent's non-residency was a classic ground for security for costs. However, it also noted that the grant of special leave to appeal indicated the case possessed elements of general importance or raised questions concerning the administration of justice. The court considered that in such cases, even if the appellant were ultimately unsuccessful, there might be a possibility of costs being ordered out of the estate, or that the nature of the case itself might warrant a departure from the usual order for security. The court also observed that the respondent's significant overseas assets suggested she would not suffer undue hardship from an order for security, and that such security could be placed in an interest-bearing account in Australia.

The court ultimately ordered that security for costs be given in the sum of $12,500.

Orders