Woodby-Chatterjee and Chatterjee (No. 2) - [2018] FamCAFC 265

FAMILY COURT OF AUSTRALIA

WOODBY-CHATTERJEE & CHATTERJEE (NO. 2)

[2018] FamCAFC 265

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the appellant seeks to adjourn the hearing of the application for security of costs pending the consolidation of her two appeals – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where an order for security for costs would stifle the appeal – Where the parties are in a poor financial position – Where the appeal is reasonably arguable – Where there has been a delay in bringing the application – Where there would be difficulty in enforcing an order for costs against the appellant – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Application for costs of a previous Application in an Appeal seeking reinstatement of the appeal and the provision of transcript – Where the reinstatement application was successful but the application for provision of transcript was not – Appellant ordered to pay two-thirds of the respondent’s costs of the application.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Application for costs of the unsuccessful application for security for costs – Respondent ordered to pay four-fifths of the appellant’s costs of the application.

Family Law Act 1975 (Cth) s 94(1AA), 117
Family Law Rules 2004 (Cth) r 19.05(2)

Atkins & Hunt (Security for Costs) (2015) FLC 93-646
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577
Halsbury & Halsbury [2008] FamCAFC 170
Luadaka v Luadaka (1998) FLC 92-830
Morris v Hanley [2001] NSWCA 374
Palma & Caleffi (Security for Costs) [2011] FamCAFC 174

APPELLANT:

Ms Woodby-Chatterjee

RESPONDENT:

Mr Chatterjee

FILE NUMBER:

SYC

3822

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

19 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

19 December 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 April 2018

LOWER COURT MNC:

[2018] FamCA 474

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Obrart

SOLICITOR FOR THE APPELLANT:

G & D Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Bricknell Legal

Orders

IT IS ORDERED:

The appellant’s oral application for an adjournment is dismissed.
The appellant is granted leave to file a Further Amended Notice of Appeal.
The appellant is to pay two-thirds of the respondent’s costs of the Application in an Appeal filed on 17 August 2018.
The Application in an Appeal filed on 5 October 2018 is otherwise dismissed.
The respondent is to pay four-fifths of the appellant’s costs of the Application in an Appeal filed 5 October 2018.

IT IS DIRECTED:

The appellant is to file and serve her Summary of Argument and List of Authorities on or before 25 January 2019.
The respondent is to file and serve his Summary of Argument and List of Authorities on or before 15 February 2019.

Note: The form of the order is subject to the entry of the order in the Court’s…

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.

Keep reading for free

Create a free CaseChat account to read Woodby-Chatterjee and Chatterjee (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCAFC 265
Decision Date: 19 December 2018

CaseChat Overview and Summary

The appeal was brought by the appellant against the respondent in family law matters. The appellant sought an adjournment of the hearing of her application for security of costs pending the consolidation of her two appeals. The application was heard in the Family Court of Australia. The central legal issues were whether the appellant's application for security of costs should be adjourned, and if so, under what circumstances. Additionally, the court had to determine the costs associated with the unsuccessful application for security of costs.

The court dismissed the appellant's application for an adjournment, finding that the appeal was reasonably arguable and the parties were in a poor financial position. The court considered that an order for security for costs would stifle the appeal and that there would be difficulty in enforcing such an order against the appellant. Furthermore, the delay in bringing the application was a factor that weighed against the adjournment. Regarding costs, the court ordered the appellant to pay two-thirds of the respondent's costs of the previous application in an appeal, as the reinstatement application was successful, but the application for the provision of a transcript was not. Conversely, the respondent was ordered to pay four-fifths of the appellant's costs of the unsuccessful application for security of costs.

In its orders, the court dismissed the appellant's oral application for an adjournment. It granted the appellant leave to file a Further Amended Notice of Appeal and ordered her to pay two-thirds of the respondent's costs of the previous application in an appeal. The application in an appeal filed on 5 October 2018 was otherwise dismissed, and the respondent was ordered to pay four-fifths of the appellant's costs of that application. The court also directed the appellant to file and serve her Summary of Argument and List of Authorities by 25 January 2019, and the respondent to do the same by 15 February 2019. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

IT IS ORDERED:

The appellant’s oral application for an adjournment is dismissed.

The appellant is granted leave to file a Further Amended Notice of Appeal.

The appellant is to pay two-thirds of the respondent’s costs of the Application in an Appeal filed on 17 August 2018.

The Application in an Appeal filed on 5 October 2018 is otherwise dismissed.

The respondent is to pay four-fifths of the appellant’s costs of the Application in an Appeal filed 5 October 2018.

IT IS DIRECTED:

The appellant is to file and serve her Summary of Argument and List of Authorities on or before 25 January 2019.

The respondent is to file and serve his Summary of Argument and List of Authorities on or before 15 February 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.