Ren v Jiang (No 4) [2014] NSWCA 315

Ren v Jiang (No 4) [2014] NSWCA 315

Security for costs was refused because the third respondent's motion was brought almost two years after the application for leave to appeal was filed and less than two months before hearing, after unexplained delay and after the third respondent had stood by while other respondents sought and obtained security. Most costs had already been incurred, only a relatively modest amount remained, the third respondent already had a measure of security by caveats over two properties, and no material change of circumstances was established. It was unreasonable to press the motion after the applicants' offer, justifying indemnity costs from 13 August 2014.

Jurisdiction
Australia
Judgment Date
10 September 2014
Procedural Posture
Notice of Motion for Security for Costs in an Application for Leave to Appeal / Interlocutory Application
Outcome
The notice of motion for security for costs was dismissed with costs, with indemnity costs from 13 August 2014.
Legal Topics
['security for Costs' 'unexplained Delay' 'inherent Jurisdiction' 'application for Leave to Appeal' 'caveats Over Real Property as Security' 'indemnity Costs']
['civil Procedure' 'costs' 'corporations and Insolvency'] ['security for Costs' 'unexplained Delay' 'inherent Jurisdiction' 'application for Leave to Appeal' 'caveats Over Real Property as Security' 'indemnity Costs']

Case Brief

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Procedural Posture

Notice of Motion for Security for Costs in an Application for Leave to Appeal / Interlocutory Application

Legal Issues

  1. 1 ['Whether the third respondent should be granted security for costs for the two day hearing of the application for leave to appeal.' 'Whether the unexplained delay in bringing the security for costs application made it inappropriate to order security.' 'Whether existing caveats over real property already provided security or required a material change in circumstances before further security could be ordered.' "Whether costs of the unsuccessful motion should be ordered on an indemnity basis after the applicants' Calderbank offer."]

Ratio Decidendi

Security for costs was refused because the third respondent's motion was brought almost two years after the application for leave to appeal was filed and less than two months before hearing, after unexplained delay and after the third respondent had stood by while other respondents sought and obtained security. Most costs had already been incurred, only a relatively modest amount remained, the third respondent already had a measure of security by caveats over two properties, and no material change of circumstances was established. It was unreasonable to press the motion after the applicants' offer, justifying indemnity costs from 13 August 2014.

Court Disposition

The notice of motion for security for costs was dismissed with costs, with indemnity costs from 13 August 2014.

Orders

  • ['The notice of motion filed 21 July 2014 be dismissed with costs.' 'The costs in order 1 to be calculated on an indemnity basis for the period on and after 13 August 2014.']