Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82

Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82

The withdrawal of the appellant’s previous solicitors constituted a material change in circumstances, justifying reconsideration of the security for costs orders. However, given that those standing behind the appellant (RF Thompson (Qld)) did not demonstrate inability (as opposed to unwillingness) to provide security and the appeal continued to face significant obstacles on the merits, the justice of the case required the orders for security to stand. Consequently, the appellant’s failure to comply with those orders justified summary dismissal of the appeal.

Jurisdiction
Australia
Judgment Date
16 April 2013
Procedural Posture
Interlocutory Applications in Appeal Proceedings / Application to Set Aside Security for Costs Orders and Applications for Summary Dismissal of Appeal
Outcome
Appellant's application to set aside security for costs orders dismissed. Respondents' applications for summary dismissal granted. Appeal dismissed with costs.
Legal Topics
['security for Costs' 'summary Dismissal' 'appeal Procedure']
['civil Procedure'] ['security for Costs' 'summary Dismissal' 'appeal Procedure']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Interlocutory Applications in Appeal Proceedings / Application to Set Aside Security for Costs Orders and Applications for Summary Dismissal of Appeal

Legal Issues

  1. 1 ['Whether a material change of circumstances justifies setting aside existing security for costs orders' 'Whether the appeal should be summarily dismissed for failure to provide security for costs as ordered']

Ratio Decidendi

The withdrawal of the appellant’s previous solicitors constituted a material change in circumstances, justifying reconsideration of the security for costs orders. However, given that those standing behind the appellant (RF Thompson (Qld)) did not demonstrate inability (as opposed to unwillingness) to provide security and the appeal continued to face significant obstacles on the merits, the justice of the case required the orders for security to stand. Consequently, the appellant’s failure to comply with those orders justified summary dismissal of the appeal.

Court Disposition

Appellant's application to set aside security for costs orders dismissed. Respondents' applications for summary dismissal granted. Appeal dismissed with costs.

Orders

  • ['Dismiss with costs the application by Mr Ballard to set aside the security for costs orders made on 18 December 2012.' "Dismiss the appeal proceedings for failure of the appellant to comply with the orders made on 18 December 2012 for the provision of security for the respondents' costs." "Order the appellant to...