Talwar and Sharma - [2018] FCCA 483

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALWAR & SHARMA

[2018] FCCA 483

Catchwords:
FAMILY LAW – Security for costs.

Legislation:

Family Law Act 1975, s.79

Federal Circuit Court Rules 2001, r.21.01

Cases cited:

Penfold & Penfold (1980) 144 CLR 311
Collins & Collins (1985) FLC 91-603

Kennon & Kennon (1997) FLC 92-757
Luadaka & Luadaka [1998] FamCA 1520

Applicant:

MR TALWAR

Respondent:

MS SHARMA

File Number:

PAC 4550 of 2017

Judgment of:

Judge Obradovic

Hearing date:

12 February 2018

Date of Last Submission:

12 February 2018

Delivered at:

Parramatta

Delivered on:

1 March 2018

REPRESENTATION

Counsel for the Applicant:

Ms Mahony

Solicitors for the Applicant:

Foteades Freeman Cohen

Appearing for the Respondent:

Mr Sparkes

Solicitors for the Respondent:

K R Lawyers & Consultants

ORDERS

That pursuant to rule 21.01 of the Federal Circuit Court Rules2001, the wife shall pay to the trust account of KR Lawyers and Consultants the amount of $15,000 by way of security for costs within 42 days.
The proceedings are stayed pending the wife’s compliance with order 1 above.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4550 of 2017

MR TALWAR

Applicant

And

MS SHARMA

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for security for costs.
The husband, the Respondent in the substantive proceedings, brings the present application by way of an Application in a Case filed on 5 December 2017. He also relies on his Affidavit filed on the same day, as well as his Financial Statement.
The wife, the Applicant in the substantive proceedings, opposes the application. She relies on her Affidavits filed 11 September 2017 and 6 February 2018. She also relies on her Financial Statement filed 11 September 2017.
By way of substantive proceedings, the wife seeks only final orders and specifically in the following terms:
a)That the wife receive 18% from the net matrimonial assets; and
b)That the husband return to the wife all jewellery he is withholding from the wife.
The husband submits that a security for costs order is appropriate in the circumstances having regard to the wife’s impecuniosity and the poor prospects of success of her substantive application.

Relevant Principles

In Luadaka & Luadaka[1] the Full Court held as follows:
[1] [1998] FamCA 1520
61. In our opinion, when dealing with an application for security for costs the general rule provided for in s.117 (1) applies, namely that subject to s.117 (2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s.117 (2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for…

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 Talwar and Sharma

Details

AGLC: Talwar and Sharma [2018] FCCA 483
Case: [2018] FCCA 483
Decision Date: 1 March 2018

CaseChat Overview and Summary

In *Talwar and Sharma*, the Federal Circuit Court of Australia was asked to consider an application for security for costs. The specific nature of the underlying dispute between the parties, Talwar and Sharma, is not detailed in the provided text, but the application for security for costs indicates a financial dispute, likely in family law proceedings given the court.

The central legal issue before Judge Obradovic was whether the wife should be ordered to provide security for the costs of the proceedings. This involved an assessment of the wife's financial circumstances and the potential risk to the husband if the wife were unable to meet any costs awarded against her at the conclusion of the substantive proceedings.

The Court ordered that the wife pay $15,000 into the trust account of KR Lawyers and Consultants as security for costs within 42 days, pursuant to rule 21.01 of the Federal Circuit Court Rules 2001. The proceedings were stayed pending the wife's compliance with this order.

Orders

Orders of the court

That pursuant to rule 21.01 of the Federal Circuit Court Rules 2001, the wife shall pay to the trust account of KR Lawyers and Consultants the amount of $15,000 by way of security for costs within 42 days.

The proceedings are stayed pending the wife’s compliance with order 1 above.

Background

Background to the litigation

Full text does not contain this section.

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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