WAI & GWOK

Case [2019] FamCA 407


FAMILY COURT OF AUSTRALIA

WAI & GWOK [2019] FamCA 407
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.

Family Law Act 1975 (Cth) ss 79, 117

Family Law Rules 2004 (Cth) r 19.05
Federal Court of Australia Act1976 (Cth) s 31A

Adult Guardian & Mother's Parents & B & Child's Representative (2002) FLC 93-116
Anderson v McPherson [No.2] [2012] WASC 19
Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 720
Brown & Brown; Eley and Henty (Interveners) (1991) FLC 92-265
Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Currie v Hamilton (1984) 1 NSWLR 687
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Feravante & McVie [2013] FamCA 758
Frazier & Valdez [2016] FamCAFC 163
Green v Green (1989) 17 NSWLR 343
Halsbury & Halsbury [2008] FamCAFC 170
Jones and Jones (2001) FLC 93-080
Kessey & Kessey (1994) FLC 92-495; 18 FamLR 149
Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
Luadaka & Luadaka (1998) 24 Fam LR 340
Martin v Martin (1959) 110 CLR 297; [1959] HCA 62
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Ryan v Ryan [2012] NSWSC 636
Sawer & Sawer [2007] FamCA 140
Sullivan & Tyler and Anor [2015] FamCAFC 167
Trustees of the Property of Cummins (a bankrupt) v Cummins [2006] HCA 6
Wirth v Wirth (1956) 98 CLR 228
APPLICANT: Ms Wai
RESPONDENT: Mr Gwok
FILE NUMBER: SYC 5603 of 2017
DATE DELIVERED: 5 July 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Harper J
DATE OF LAST SUBMISSION: 13 May 2019

REPRESENTATION

SOLICITOR-ADVOCATE FOR THE APPLICANT: Ms Lee
SOLICITOR FOR THE APPLICANT: Stephanie Lee Family Lawyers
SOLICITOR-ADVOCATE FOR THE RESPONDENT: Mr Sukari
SOLICITOR FOR THE RESPONDENT: Herald Legal

Orders

  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…

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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.

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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