Waldon and Kipley-Waldon (No. 3)
[2014] FamCA 728
FAMILY COURT OF AUSTRALIA
| WALDON & KIPLEY-WALDON (NO. 3) | [2014] FamCA 728 |
| FAMILY LAW – PRACTICE AND PROCEDURE – POWER TO REVIEW FINAL ORDER – application for trial judge to review a final determination – dismissed FAMILY LAW – COSTS – application for costs, indemnity costs and security for costs. Family Law Act 1975 (Cth) ss 79A, 94 and 117 Bartsch & Redman (2014) FLC 93-584 |
| APPLICANT: | Mr Waldon |
| RESPONDENT: | Ms Kipley-Waldon |
| FILE NUMBER: | HBC 246 | of 2012 |
| DATE DELIVERED: | 14 August 2014 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 4 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Tony FitzGerald |
| SOLICITOR FOR THE RESPONDENT: | FitzGerald & Browne |
Orders
BY DETERMINATION and pursuant to the Family Law Rules 2004 (Cth) the time for filing the application by Ms Kipley-Waldon (‘the former wife’) for costs is extended to enable the determination of the application filed on 8 July 2014.
BY CONSENT and pursuant to the Family Law Rules 2004 (Cth) the time for filing the application and amended application made by Mr Waldon (‘the former husband’) filed on the 17 June 2014 and amended 25 July 2014 is extended to the date of their filing.
BY DETERMINATION the former husband’s applications filed 17 June 2014 and amended 25 July 2014 are dismissed.
BY DETERMINATION the former husband is ordered to pay the legal costs of the former wife:-
(a)being costs of the substantive proceedings (constituted by the application of the former husband filed 25 March 2013 and as amended by his application filed 25 July 2013 and as determined by order made 19 May 2014);
(b)being costs of the interlocutory proceedings constituted by the applications filed by the former wife on 13 June 2014 and 8 July 2014 and the former husband’s applications filed on 17 June 2014 and amended 25 July 2014; and
(c)such costs to be assessed and/or determined on a party/party basis.
BY DETERMINATION the interlocutory consent order made 7 February 2014 in respect of the money held by McCulloch & Associates and the injunction contained in order 1(b) of those orders is dismissed.
BY DETERMINATION and consequent to the preceding order, the parties shall sign all documents and authorities within 28 days of the date of this order to authorise McCulloch & Associates to account to the former husband for the balance of the proceeds of sale of property R Street, Suburb A being one hundred thousand dollars ($100,000.00) (plus accrued interest).
All other extant applications are dismissed.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley-Waldon (No. 3) has been approved by the Chief Justice pursuant to s 21(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC246/2012
| Mr Waldon |
Applicant
And
| Ms Kipley-Waldon |
Respondent
REASONS FOR JUDGMENT
Introduction
These are costs and other interlocutory proceedings made by Mr Waldon (‘the former husband’) and Ms Kipley-Waldon (‘the former wife’) following substantive proceedings of this Court determined 19 May 2014.
On that date this Court summarily dismissed the proceedings commenced by the former husband in which he sought to set aside consent property orders made 5 January 2012. When the former husband’s proceedings were dismissed, leave was given to the parties to apply to discharge any interlocutory order/s made during the course of the proceedings and for any costs applications.
On 13 June 2014 (within the 28 day period provided in the order) the former wife filed an application in a case seeking orders varying an interlocutory order and which included an application for an order that an amount be retained in relation to the legal costs and disbursements of the substantive proceedings. That application did not contain an application for costs but such motion was implicit.
On 8 July 2014 the former wife filed a further application in a case seeking leave of the Court to make her costs application out of time and seeking a costs order against the respondent and calculation of those costs on an indemnity basis.
The Issues
The issues to be determined for the former wife were:-
a)leave to extend the time for her costs application;
b)costs on the substantive proceedings and costs applications;
c)whether costs ought to be determined on a party/party or indemnity basis; and
d)security for costs.
The former husband filed an application (out of time) on the 17 June 2014 and filed an amended application on the 25 July 2014. He relied upon the amended application seeking orders that:-
a)this Court review its determination made on the 19 May 2014 and set aside or vacate those orders, and (presumably) that once that occurred the property orders made 5 January 2012 be set aside;
b)funds held in trust totalling $100,000 (plus accumulated interest) be released to him (this was in essence a consent order, subject to the wife seeking to have either $20,000 or $30,000 retained as security for costs);
c)that there be no costs order in favour of the former wife and that she pay his legal costs of the substantive application. The orders sought in the Applicant's amended application are difficult to discern. It states, in essence, that the parties bear their own costs, except for the costs of the Applicant's representation for a limited period of time when he was represented by John Munro.
d)security for his costs;
e)an expedited hearing of the then property proceedings between the parties; and
f)the Court directs that a financial statement of the respondent’s retirement superannuation plan be presented to the Court and there be valuations of a home unit property at Suburb B together with another valuation of a property in Hobart.
The Evidence
The former wife relied upon:-
a)her applications in a case filed 13 June 2014 and 8 July 2014;
b)the reasons and orders of the substantive proceedings of 19 May 2014;
c)interlocutory order made 7 February 2014;
d)her response (filed 1 August 2014) to the former husband’s application in a case;
e)her affidavits filed 13 June 2014, 8 July 2014 and 30 July 2014;
f)her financial statement filed 1 August 2014; and
g)the affidavit of Mr FitzGerald filed 8 July 2014.
The former husband relied upon:-
a)his applications in a case filed 17 June 2014 and amended application filed 25 July 2014;
b)the reasons and orders of the substantive proceedings of 19 May 2014;
c)interlocutory order made 7 February 2014; and
d)his affidavits filed 17 June 2014 and 25 July 2014.
Background
The parties were both born in 1948. They married in 1971, separated in 2009 and their marriage was dissolved by an order made in April 2012, which became absolute in May 2012.
There are no children of the marriage under the age of eighteen years.
On 25 March 2013 the former husband filed a substantive application in the Family Court seeking orders under Part VIII of the Family LawAct 1975 (“the Act”). The initial application was prepared by the former husband who was representing himself. It was difficult, if not impossible, to discern from the words contained in that application precisely what orders and/or relief the former husband sought. Fortunately, the former husband sought legal advice and on 25 July 2013 orders were sought to set aside consent property orders made 5 January 2012 and a determination of the property issues.
The former wife opposed that application and sought summary dismissal of the former husband’s proceedings. The former wife contended that there was no reasonable likelihood of success and that the husband’s application was frivolous or vexatious.
The wife’s application was successful and the husband’s proceedings were summarily dismissed on 19 May 2014.
Jurisdiction of the Court to ‘review’ its 19 May 2014 Order
The former husband claimed that the Court had power to review its 19 May 2014 decree. Accordingly, the first question the Court had to determine was whether it had power to set aside and/or review that decree.
Section 94 of the Act provides a right of appeal from a decree of a single judge of the Family Court exercising original jurisdiction under the Act.
The substantive application made by the former husband (which was dismissed) was to set aside the consent property orders made between the parties on 5 January 2012. That substantive application was made pursuant to s 79A(1)(a) of the Act. The Act empowers the Court[1] to set aside orders altering property interests under the Act in certain circumstances.
[1] Section 20 defines the ‘Court’ as meaning the Family Court of Australia.
The orders of the 19 May 2014 were not property orders; they were final orders (albeit determined summarily) dismissing the s 79A(1)(a) application. As such, except for those limited matters that the Court had reserved in regards to cost and interlocutory orders, the husband’s substantive proceedings were at an end.
In his application in a case and his amended application in a case, the former husband made various assertions as to the conclusions reached by this Court in determining the summary dismissal application. Those submissions were voluminous and at times it was difficult to discern precisely why the orders ought to be set aside. However, that was not my initial task. I needed first to identify the legislative or other power upon which I could consider the husband’s application to review and set aside or vary the 19 May 2014 orders.
The counsel for the former wife submitted that he could not identify any source of power.
The former husband struggled to identify any power. His submissions related to his concerns about my reasoning in making the 19 May 2014 orders but did not seriously address the issue regarding power. The former husband eventually asserted that the power to set aside the orders was contained under s 79A of the Act. He commenced making submissions as to why I ought to have set aside the January 2012 property orders and was unable or unwilling to address the source of power question. There seems to be no internal legislative power within s 79A to enable such a review and I was not taken to any other source of power.
Given that the former husband was unable to provide the Court with the basis of its power to set aside the 19 May 2014 orders, that part of the former husband’s application must fail and will be dismissed.
Consequently, the orders sought by the former husband in his amended application in terms of the security for costs in respect of those proceedings (fourth order sought), listing the matter for hearing of the property proceedings prior to the 7 October 2014 (fifth order sought) and directing further enquiries as to the financial circumstances of the former wife (sixth order sought), must likewise fail.
Leave to extend time
In the former wife’s application in a case filed 13 June 2014, the former wife did not include an application for costs of the substantive proceedings. However, it was implicit from the order sought in her application that she was intending to make an application for costs.
The costs application was subsequently filed on 8 July 2014, some 25 days later and outside the time limits provided in Family Law Rules 2004 (Cth) (‘the Rules’).[2] Leave is sought by the former wife pursuant to r 21.02(1)(c) of the Rules.
[2] Rule 21.02(1)(b).
Mr FitzGerald deposed in his affidavit filed 8 July 2014 that he had instructions to file an application for costs and that he was busy running his practice at this time and inadvertently the costs application was not included in that filed 13 June 2014. He submitted and deposed that it was clear that costs were in issue and consequently there could be no prejudice to the former husband. I accept that it was clear from the 13 June 2014 application that costs were in issue and that in those circumstance there was no evidence of prejudice to the former husband.
The former husband submission was that there should be no extension of time.
Counsel for the former wife referred me to Rayburn & Pritchard (2014) FLC 93-573, in which Bryant CJ, Finn and Duncanson JJ said:-
26.Her Honour discussed cases referred to by the parties in their submissions including OP v HM (2002) 168 FLR 465, Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and Gallo v Dawson (1990) 93 ALR 479.
27.Her Honour referred to Clivery and Conway [2007] FamCA 1435 wherein the Full Court of the Family Court of Australia (May, Thackray and O’Reilly JJ) said at para 14:
The principles emerging from Gallo v Dawson may be summarised as follows:
• The grant of an extension of time is not automatic.
•The object is to ensure that Rules which fix times do not become instruments of injustice.
•Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
•When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
•When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
I adopted the approach that the grant of an extension of time was not automatic.
The former wife made it clear in her June 2014 application that she was seeking costs and the extension of time is to enable her to give effect to that which she had intended to file within the period of time. There was no injustice or prejudice to the former husband. No additional time was caused as all of the applications were heard at the same time. The former husband sought costs in his amended application.
The former husband sought to file an application in a case out of time which included the application for review and the application in relation to costs which I have determined for the reasons set out later. Counsel for the former wife consented to leave being granted to extend the time for the filing of those applications.
Given that the substantive proceedings were summarily dismissed, it was clear that costs were in issue.
In these circumstances, strict compliance with the Rules would have worked an injustice upon the former wife and as such I determine that it is appropriate to extend the time to file the costs application and I will do so.
The former wife’s costs
Costs orders are discretionary and such discretion is to be guided by the judicial officers determination of what is ‘just’ having regard to the factors set out under s 117A of the Act.
In Penfold v Penfold (1980) 144 CLR 311, the plurality of that Court said that s 117(1) of the Act is not paramount to s 117(2) of the Act. In determining the question of costs, the Court has a wide discretion. Section 117 provides:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
(a) The financial circumstances of each of the parties to the proceedings
There is, at least in part, an agreement as to the factual financial circumstances of each of the parties.
In her financial statement filed 1 August 2014, the former wife discloses an income of about $1,900.00 per a week and expenditure of about $1,645.00 per week. She has non superannuation property with a value of about $463,000.00 and superannuation entitlement of about $548,000.00. Against these assets she has liabilities of $44,500.00.
The former husband is currently unemployed and receives pension benefits of about $400.00 per week. He has personal assets in the form of a business and a motor vehicle with a value of about $9,500.00. He received about $277,000.00 from the sale of a matrimonial property and is entitled to a further $100,000.00, which is remaining in the solicitors’ trust account from that sale.
As between the former husband and former wife, the former wife’s circumstances are vastly superior to that of the former husband.
(b) Is either party to the proceedings in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party
Neither party was in receipt of legal aid.
(c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters
Counsel for the former wife submitted that there were no reasonable prospects of success in these proceedings and that the summary dismissal of them was indicative of that circumstance. I accept that submission and I have had regard to this factor in respect of this sub-section and in relation to the following relevant sub-sections.
Sub-sections (d), (f) and (g):
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
No submission was made on behalf of the former wife in relation to these factors. No specific submission was made by the former husband in respect of these factors, although he made a general submission that he ought not to be ordered to pay costs.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The submission on behalf of the former wife was that the former husband had been wholly unsuccessful in the substantive proceedings.
To that end counsel for the former wife referred to various provisions of the 19 May 2014 judgment, namely:-
53.I am not satisfied that the evidence adduced by the former husband in his financial statement, affidavit and application in a case of 14 February 2014 or his affidavit filed 2 April 2014 provide any viable evidence of the duress which he asserted which would, seen in their best light, constitute miscarriage of justice by reason of duress as provided under s 79A(1)(a) of the Act. As such that ground to set aside the January 2012 orders must fail.
[…]
60.Given the evidence of the former husband, taken at its best, in regard to the alleged miscarriage of justice by reason of the alleged duress in June and December 2011, that claim is doomed to fail.
[…]
68.There was no evidence of suppression of that material as asserted by the former husband; the contrary seems the case that is he was informed. Accordingly, that basis upon which the former husband seeks to have the orders set aside is doomed to fail.
[…]
76The thrust of the former husband’s submission was that the consent orders were in the circumstances unjustly obtained. I do not accept, in the circumstances of the evidence asserted by the former husband, that the orders were unjustly obtained.
77.It is a serious matter to deprive the former husband of access to law and applications such as these, need to be seen as rare and are sparingly used.
78.The former husband has not provided cogent evidence to support his case. His case does not provide the evidence to base his claim to set aside the orders under s 79(1)(A)(a) of the Act.
[…]
80.On the former husband’s evidence he could not satisfy this Court that there had been a miscarriage of justice by reason of duress or suppression of evidence. On that evidence it was not open for the Court to set aside the 5 January 2012 orders.
81.I find that the former husband has no reasonable prospects of success in his application to have the consent property orders made 5 January 2012 set aside and consequently, the proceedings commenced by the former husband by his application filed 25 March 2013 and as amended by him on 25 July 2013 are to be wholly dismissed.
It is not in issue that the former husband was wholly unsuccessful in the substantive proceedings. The basis upon which he asserted that the orders made by the Registrar in January 2012 ought to be set aside were such that the former husband in respect of each claim individually and cumulative was determined to have no reasonable prospect of success.
In terms of the applications in a case, the former wife was unsuccessful in terms of security for costs and indemnity costs. However, significant time was taken up with the former husband’s application for review and the substantive costs applications. The security for costs and indemnity costs applications were reasonably made, given the history of the substantive proceedings, but were ultimately unsuccessful.
Given the circumstances considered in the light of the relevant factors, I determine that in the circumstances of this proceeding (both the primary and interlocutory applications) it is just that the former husband should pay the costs of the former wife, including the costs of the applications in a case.
Indemnity Costs
In the recent decision of Prantage & Prantage (2013) FLC 93-544, the Full Court discussed the approach to be adopted in relation to indemnity costs and set out the settled law relating to indemnity costs:-
76.The law relating to indemnity costs has been well established in this jurisdiction for many years, a fact the trial Judge himself properly recognised.
77.This Court recognised in Kohan (supra) that there is nothing in the Act which inhibits the making of an order for indemnity costs. However, while acknowledging there is a discretion “in an appropriate case” to make an order for indemnity costs, the Full Court also said, at 79,605:
it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under s117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
78.The Full Court, when re-exercising the trial Judge’s discretion in Kohan, also said, at 79,615:
When considering what is just in this case, one must bear in mind that a party who enters into a costs agreement should be warned and must anticipate in this jurisdiction that each party might well have to bear his or her own costs, and that even if an order for party and party costs is made, the difference between party and party costs and costs payable under a costs agreement may consume all, or a substantial part, of the property order. In this particular case, the former wife changed her solicitors in August 1990. It must then have been apparent to her, or at least to her new solicitors, that this might become drawn out litigation and that a rate of costs which amounted to three times the scale, exposed the former wife to great risks. If she was willing to assume these risks, it does not seem just to saddle the former husband with them. If they were not explained to her, she might have her own remedies.
79.At the time Kohan was decided, there was no mention of indemnity costs in the Rules. This is no longer the case, as will be seen from our recital of the Rules earlier. It will also be noted that the requirement for the Court to be informed of the terms of the relevant costs agreement has now been enshrined in the Rules. Notwithstanding this formal recognition of indemnity costs, this Court and trial Judges in this jurisdiction have routinely followed Kohan in holding that indemnity costs orders are to be seen as “a very great departure from the normal standard”. We consider citation of authority to this effect would be otiose, so well accepted is the proposition.
This Court has discretionary powers to make costs orders on an indemnity basis. In these proceedings I considered whether I ought as it was submitted that the circumstances were a “very great departure from the normal standard”.
In this case I had in evidence before me the former wife’s costs agreement and detail of the costs and the difference in costs between indemnity and party/party.
The additional costs incurred by the former wife in these proceedings were about $10,000 which represented an uplift of about fifty per cent on party/party costs.
There were a number of grounds for claiming the indemnity costs order. One was that the proceedings commenced by the father were doomed to fail. I accept that was the case and found it to be so in the reasons for judgment dated 19 May 2014 basing the substantive order.
The next basis was that the proceedings were summarily dismissed. This is in essence a repeat of the earlier basis.
However, in the circumstances of this case and given the broad discretion that I am entitled to exercise, I am not satisfied that in all of the circumstances it falls within that special and rare group of cases where there ought to be an indemnity costs order. As such, I determine that there ought not to be an order for the assessment of costs on an indemnity basis.
Security for costs
The Full Court set out the law regarding security for costs in Bartsch & Redman (2014) FLC 93-584. Those principles were:-
6.Particularly given the self-represented status of both parties before us, we will begin by setting out the principles which govern the determination of an application for security for the costs of an appeal. Those principles were summarised by the Full Court in Sawer & Sawer [2007] FamCA 140 in the following way:
19.The power in this Court to make an order for security for costs is to be found in s 117(2) of the [Family Law Act 1975 (Cth)], which is in the following terms:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), [4A] and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
20.The provisions of s 117(2A) are as follows ( s 117(4) [4A] and (5) are not presently relevant):
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
21.The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c)whether or not an order for security would stifle the litigation;
d)whether or not the litigation may involve a matter of public importance;
e)whether or not there has been a delay in bringing the application for security;
f)whether there would be difficulty in enforcing an order for costs
[…]
7.The principles enunciated by the Full Court in Sawer were drawn from the previous Full Court decisions of Luadaka & Luadaka (1998) FLC 92-830, Jones and Jones (2001) FLC 93-080, and Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116, and have been applied in subsequent Full Court decisions such as Halsbury & Halsbury [2008] FamCAFC 170, Shaw & Muller [2009] FamCAFC 118, Gerber & Bradley [2011] FamCAFC 206, Galloway & Steel [2011] FamCAFC 243, Palma & Caleffi and Anor [2011] FamCAFC 174, and Fenton & Marvel [2012] FamCAFC 150.
The former wife’s application in this respect was that it was possible that no monies would be available for her to meet any costs determined pursuant to any costs orders.
The former wife has been entirely successful in the primary proceedings and partly successful in relation to a costs application (albeit that there was no order for indemnity costs). As such, the claim for security is bona fide and any order would not stifle the litigation. There has been no significant delay in bringing the application for security.
The substantive issue is whether there would be a difficulty in enforcing a costs order.
The former wife contends that the former husband has not notified her as to what happened to the money that was released to the former husband pursuant to the consent orders made in February 2014. She complained that the former husband has not provided documentation in relation to the property that he wishes to buy.[3]
[3] Paragraph 7 of the former wife’s affidavit filed 13 June 2014.
Whilst the former wife has expressed concerns about the former husband providing information to her, given the factual circumstances, I am not satisfied that I ought to exercise the Court’s discretion and make an order for security for costs and I will not do so.
Accordingly, that aspect of the claim is dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 August 2014.
Associate:
Date: 14 August 2014
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