WALL v WALL

Court of Appeal (NSW)|1994-02-14|Before: Handley JA

WALL v WALL THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Handley JA The court is faced with cross-motions from the parties. The underlying appeal is from the decision of Master Windeyer, as he then was, in proceedings under the De Facto Relations Act. In those proceedings the present respondent, Mrs Wall, was substantially successfully and obtained an order that the appellant's half interest in the former family home be transferred to her. Her notice of motion filed on 3 December 1993 seeks, in prayer 1, an order for summary dismissal of the appeal and, in prayer 2, an order that the supplementary notice of appeal be struck out on, what I would call, procedural and formal grounds and, prayer 3, that the appeal be expedited and prayer 4, that the appellant be ordered to provide security for costs.

As I indicated at the outset of these proceedings, the court does not encourage applications for summary dismissal or stay on the grounds that the appeal is vexatious, nor does it encourage procedural applications directed to striking out some, but not all, of the grounds of appeal. The Court's experience is that applications of this kind normally take up a substantial amount of court time, result in substantial costs being incurred, and that, in, each case, the time and the costs incurred represent a substantial part of the time and costs that would be incurred in the full hearing of the appeal. Accordingly, the Court's practice for many years has been to adjourn motions of this kind until the hearing of the appeal because the court that hears the appeal will be in a better position to deal with such motions. Accordingly, I order that the notice of motion of 3 December insofar as it seeks relief claimed in prayers | and 2, be adjourned to the hearing of the appeal.

The application that the appeal be expedited has been overtaken by events. This appeal is now 18 in the Court's priority of pending appeals and I am informed by the Registrar that it will be in the next callover to be held on 6 April. The order for expedition could not achieve, at this stage, any greater expedition and, accordingly, prayer 3 will be dismissed.

Prayer 4 seeks an order that the appellant provide security for costs. The Court's power to order an appellant to provide security for costs is to be found in RSC Pt51 rll which provides that such an order can be made in the Court's discretion "in special circumstances". In my opinion the claimant, Mrs Wall has made out a case of special circumstances. Both parties are in receipt of pensions. The litigation relates to the former family home which, as a result of Master Windeyer's orders, became the sole property of Mrs Wall. This is the order, of course, which is under challenge in the appeal. Mrs Wall has been legally aided to date and, as a result, there is currently a charge over the home in favour of the Legal Aid Commission which secures the repayment of some $13,000. On the evidence Mrs Wall does not have any other assets. She could only pay off this

charge at a very modest rate over many years - out of the surplus (if any) from her pension after meeting her ordinary living costs. In the real world it is very doubtful whether there ever will be any such surplus.

If the appeal proceeds and fails the result will be to substantially increase the amount owed by Mrs Wall to the Legal Aid Commission which, by one means or another, would ultimately be payable out of what is now her house. The former share in that house, previously owned by the appellant, will constitute property recovered by Mrs Wall as a result of these proceedings and, therefore, potentially subject to the charge in favour of the Commission for their legal aid costs for Mrs Wall.

The evidence is that Mr Wall is a pensioner and there was evidence before Master Windeyer that he had no other substantial assets, apart from his pension. No attempt has been made in this Court to establish that Mr Wall has since acquired assets or income which will enable him to readily meet any order for costs of the appeal.

It seems to me, where an unsuccessful appeal would increase an already substantial charge over the home of the respondent and where, on the evidence, the appellant is unable, or unlikely to be able, to readily meet those costs, a case of "special circumstances" has been established. It seems to me it would be inherently unfair for the appeal to go on and fail and for the result to be that Mrs Wall loses a further interest in her home.

I, therefore, propose to make an order for security. There is evidence which would support the view that the costs of proceedings today, plus the costs of the hearing of the appeal, would amount to approximately $5,000 and, in those circumstances, I propose to order that security be provided in that amount. This does not include any amount for the costs of the trial.

I therefore order that the appellant provide security for the costs of the respondent of this appeal to the satisfaction of the Registrar in the amount of $5,000 such security to be provided on or before 16 May 1994. In view of the degree of practical success and failure gained by the claimant in relation to the notice of motion, I order that the costs of that motion be costs in the appeal.

Mr Wall, in his notice of motion, has sought an order that the Court of Appeal sit in Lismore for the hearing of this appeal. The Court has power to make such order but, because of the substantial cost to the public of moving three judges and associated staff from Sydney to Lismore and return, such an order has not been made in my experience and would not lightly be made.

The parties do live close to Lismore and refusal of the order means Mr Wall will once again have to travel to Sydney to argue his case. However, Mrs Wall would be faced with the task of having her counsel travel from Sydney to Lismore to argue her case. Balancing the public and private costs and detriments of a hearing in Sydney with those associated with a hearing in Lismore it seems that, on balance, the Court should not sit at Lismore. Accordingly, I dismiss Mr Wall's notice of motion. Since no extra costs have been incurred as a result I make no order as to costs of that motion.

I order that the appellant, John Andrew Wall, provide security for the costs of the respondent of the present appeal in the amount of $5,000 to the satisfaction of the Registrar, such security to be provided on or before 16 May and I order that, in the meantime, there be a stay of proceedings in the appeal.

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Judgment (15 paragraphs)

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