FAMILY LAW – COSTS – SECURITY FOR COSTS – Where the Third Respondent seeks security for costs pending Final Hearing to be paid by the First Respondent – where the First Respondent joined the Third Respondent to proceedings – where the First Respondent opposes the Third Respondent’s Application for security for costs – whether rule 19.05 of the Family Law Rules 2004 (Cth) applies to an application between respondents – where the Court determines an order for security for costs of the Third Respondent is appropriate, but in a lesser sum than sought.
Within 45 days of the date of these orders, the First Respondent husband, Mr Gwok (“the husband”), provide security for costs of the Third Respondent in these proceedings, Ms Wai (“the Third Respondent”), in the sum of $25,000, to be held in trust by the Third Respondent’s solicitors, pending further order of the Court.
In the event the husband fails to comply with Order 1, the proceedings against the Third Respondent in relation…
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.
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Details
AGLC
WAI & GWOK [2019] FamCA 407
Case
[2019] FamCA 407
Decision Date
CaseChat Overview and Summary
In the matter of WAI & GWOK, Harper J of the Family Court of Australia considered an application for security for costs. The dispute arose when the First Respondent, Mr Gwok (the husband), joined the Third Respondent, Ms Wai (the Third Respondent), to the proceedings. The Third Respondent sought security for her costs, which the First Respondent opposed.
The central legal issue before the Court was whether rule 19.05 of the Family Law Rules 2004 (Cth) applied to an application for security for costs made by one respondent against another. The Court was required to determine if an order for security for costs was appropriate in these circumstances and, if so, in what amount.
Harper J determined that an order for security for costs in favour of the Third Respondent was appropriate. The Court reasoned that while the rule could apply in this context, the amount sought by the Third Respondent was excessive. Consequently, the Court ordered the First Respondent to provide security for the Third Respondent's costs in the sum of $25,000 within 45 days. Failure to comply with this order would result in the dismissal of the proceedings against the Third Respondent concerning the A Street, Suburb B property.
Orders
Orders of the court
1.
Within 45 days of the date of these orders, the First Respondent husband, Mr Gwok (“the husband”), provide security for costs of the Third Respondent in these proceedings, Ms Wai (“the Third Respondent”), in the sum of $25,000, to be held in trust by the Third Respondent’s solicitors, pending further order of the Court.
2.
In the event the husband fails to comply with Order 1, the proceedings against the Third Respondent in relation to the A Street, Suburb B property (as contained in his Response filed 4 October 2017) be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.