Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32

Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32

There are special circumstances justifying an order for security for costs because the appellants are impecunious, the appeal is more likely to fail than not, and the appellants' lawyers have a direct financial interest in the success of the appeal and have enabled the litigation to proceed. It is reasonable in the circumstances that the lawyers provide some financial support by way of security. A balance of interests supports ordering security in the amount of $40,000, which reflects the appellants’ impecuniosity and the interests of their lawyers as contingent creditors.

Jurisdiction
Australia
Judgment Date
16 March 2021
Procedural Posture
Appeal / Interlocutory Application for Security for Costs
Outcome
Order for security for costs granted; proceedings stayed until security provided; costs order as specified.
Legal Topics
['security for Costs' 'costs of Appeal' 'impecuniosity' 'repudiation of Contract' 'sale of Land' 'defect in Title']
['civil Procedure'] ['security for Costs' 'costs of Appeal' 'impecuniosity' 'repudiation of Contract' 'sale of Land' 'defect in Title']

Case Brief

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Procedural Posture

Appeal / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 ['Whether special circumstances justify an order for security for costs of the appeal' 'Whether the appeal would be stultified by ordering security for costs' 'Whether the lawyers for the appellants, who stand to benefit from the appeal, should be required to provide security' "Whether the respondents are responsible for the appellants' financial position" 'Merits of the grounds of appeal against primary judgment in contract for sale of land']

Ratio Decidendi

There are special circumstances justifying an order for security for costs because the appellants are impecunious, the appeal is more likely to fail than not, and the appellants' lawyers have a direct financial interest in the success of the appeal and have enabled the litigation to proceed. It is reasonable in the circumstances that the lawyers provide some financial support by way of security. A balance of interests supports ordering security in the amount of $40,000, which reflects the appellants’ impecuniosity and the interests of their lawyers as contingent creditors.

Court Disposition

Order for security for costs granted; proceedings stayed until security provided; costs order as specified.

Orders

  • ["The appellants provide within 14 days security in the sum of $40,000 for the respondents' costs of the appeal either by payment into Court or as otherwise agreed." 'Stay these proceedings until appellants have provided security for costs in accordance with order 1.' "The costs of the respondents' notice of motion...