Patrick v Howorth [2002] NSWCA 285

Patrick v Howorth [2002] NSWCA 285

The appellant did not demonstrate any error of law, material error of fact, failure to consider a material consideration, consideration of an irrelevant matter, or plainly unreasonable exercise of discretion in Handley JA's order. Section 204 of the Life Insurance Act 1995 did not prevent the appellant from voluntarily using any policy moneys to provide security, the bankruptcy preference argument did not show that the order would necessarily give a preference, the complaints about property dealings and concealment were not made out, there was no evidence that the respondent sought to stifle the appeal or misled the Court, and the evidence did not show incapacity to raise the security....

Jurisdiction
Australia
Judgment Date
29 August 2002
Procedural Posture
Court of Appeal Application Concerning Security for Costs of an Appeal / Notice of Motion for Review Under S 46(4) of the Supreme Court Act 1970 of Handley Ja's Order for Security for Costs
Outcome
Notice of Motion dismissed with costs; security for costs order varied only as to the date for compliance.
Legal Topics
['security for Costs' 'special Circumstances' 'review of Interlocutory Discretionary Orders' 'life Insurance Moneys' 'preferential Payments' 'stifling an Appeal']
['civil Procedure' 'appellate Procedure' 'bankruptcy' 'insurance'] ['security for Costs' 'special Circumstances' 'review of Interlocutory Discretionary Orders' 'life Insurance Moneys' 'preferential Payments' 'stifling an Appeal']

Case Brief

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Procedural Posture

Court of Appeal Application Concerning Security for Costs of an Appeal / Notice of Motion for Review Under S 46(4) of the Supreme Court Act 1970 of Handley Ja's Order for Security for Costs

Legal Issues

  1. 1 ["Whether Handley JA's order that the appellant provide $30,000 security for costs should be set aside on review under s 46(4) of the Supreme Court Act 1970." 'Whether alleged life insurance or injury compensation moneys protected by statute could be considered in relation to security for costs.' 'Whether payment out of security after an unsuccessful appeal would necessarily constitute a preferential payment under bankruptcy law.' "Whether the security order would stifle the appeal or was based on erroneous findings about the appellant's assets."]

Ratio Decidendi

The appellant did not demonstrate any error of law, material error of fact, failure to consider a material consideration, consideration of an irrelevant matter, or plainly unreasonable exercise of discretion in Handley JA's order. Section 204 of the Life Insurance Act 1995 did not prevent the appellant from voluntarily using any policy moneys to provide security, the bankruptcy preference argument did not show that the order would necessarily give a preference, the complaints about property dealings and concealment were not made out, there was no evidence that the respondent sought to stifle the appeal or misled the Court, and the evidence did not show incapacity to raise the security....

Court Disposition

Notice of Motion dismissed with costs; security for costs order varied only as to the date for compliance.

Orders

  • ['The Notice of Motion dated 26 July 2002 is dismissed.' "The appellant is to pay the respondent's costs of the Notice of Motion of 26 July 2002." 'The order for security for costs made by Handley JA on 15 July 2002 is varied by deleting "16 September 2002" and substituting "1 November 2002".']