Taouk v Taouk [2024] NSWSC 598

Taouk v Taouk [2024] NSWSC 598

Although the Court treated the power to order security for costs as enlivened, it declined to order security because the plaintiff was in transition between Lebanon and Australia, had strong connections with Australia, had probably decided to return to Australia permanently with her children, was receiving cancer treatment in Sydney, there was no clear narrative explaining why she would return to Lebanon, and she consented to an enforceable order that she not leave Australia until the completion of the proceedings, including any enforcement action.

Jurisdiction
Australia
Judgment Date
17 May 2024
Procedural Posture
Application for Security for Costs in Equity Proceedings / First Defendant's Amended Motion Dated 13 December 2023, Amended on 9 February 2024
Outcome
Motion dismissed. No order as to costs. Directions made for the future conduct of the proceedings.
Legal Topics
['security for Costs' 'ordinary Residence Outside Australia' 'ucpr R 42.21' 'undertaking or Order Not to Leave Australia' 'administration of Deceased Estate' 'alleged Forgery of Property Transfer' 'resulting Trust and Constructive Trust']
['costs' 'civil Procedure' 'equity' 'probate and Estates' 'real Property'] ['security for Costs' 'ordinary Residence Outside Australia' 'ucpr R 42.21' 'undertaking or Order Not to Leave Australia' 'administration of Deceased Estate' 'alleged Forgery of Property Transfer' 'resulting Trust and Constructive Trust']

Case Brief

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Procedural Posture

Application for Security for Costs in Equity Proceedings / First Defendant's Amended Motion Dated 13 December 2023, Amended on 9 February 2024

Legal Issues

  1. 1 ['Whether the plaintiff was ordinarily resident outside Australia for the purpose of an application for security for costs under UCPR r 42.21(1)(a).' 'Whether, if the power to order security for costs was available, the Court should exercise its discretion to order security.' "Whether the plaintiff's return to Australia, cancer treatment in Sydney, family connections, stated intention to remain, and undertaking not to leave Australia made security for costs inappropriate." 'What orders and directions should be made for the future conduct of the proceedings.']

Ratio Decidendi

Although the Court treated the power to order security for costs as enlivened, it declined to order security because the plaintiff was in transition between Lebanon and Australia, had strong connections with Australia, had probably decided to return to Australia permanently with her children, was receiving cancer treatment in Sydney, there was no clear narrative explaining why she would return to Lebanon, and she consented to an enforceable order that she not leave Australia until the completion of the proceedings, including any enforcement action.

Court Disposition

Motion dismissed. No order as to costs. Directions made for the future conduct of the proceedings.

Orders

  • ["Subject to order (2), DISMISS the first defendant's amended motion dated 13 December 2023." 'ORDER that the plaintiff, with her own consent and subject to her right to apply to vary this order upon due cause being shown, shall not leave Australia until the completion of these proceedings including any enforcement...