VERATAU v WIMBORNE [1994] NSWCA 333

VERATAU v WIMBORNE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 16 May 1994

[1994] NSWCA 333

Handley JA Mr Broun QC, who appears for the respondent on the appeal and the claimant in the motion moves for an order that the appellant provide security for the costs of the appeal pursuant to PtS1 rll of the rules. Under the rule the Court's power is to order security for costs if special circumstances are made out.

The present litigation is unfortunate because the appellant is the daughter of the respondent. The dispute before the Equity Division related to the beneficial ownership of shares in a New Guinea gold mining company held in the name of the appellant. There was no dispute that the moneys used to acquire the shares came from the respondent. The only issue at the trial was whether the respondent was able to displace the presumption of advancement which arose because he, as father, had put property in the name of his daughter.

Young J, the trial Judge, having heard the oral evidence of the, father and the daughter and other evidence relating to the surrounding circumstances both at the time and subsequently, concluded that the father had succeeded in rebutting the presumption of advancement. He granted relief on the basis that the daughter was trustee of the shares for the father.

The daughter has appealed as of right to this Court as she is entitled to do. However, there is undisputed evidence that she is not in employment, does not own any land and has minimal assets.

With some encouragement from me, the parties have successfully negotiated an interim arrangement which will enable the respondent, subject to his undertaking as to damages, to sell the gold mining shares pending the hearing of the appeal, with the proceeds of sale being held in an interest-bearing account to abide the outcome of the appeal. In addition, the appellant has consented to an order that she pay into an interest-bearing account the dividend or dividends she has received on the shares. These sensible arrangements have enabled the Court to dispose of the application for a stay of proceedings brought by the appellant.