Fagin v Australian Leisure and Hospitality Group Pty Limited [2017] NSWCA 306

Fagin v Australian Leisure and Hospitality Group Pty Limited [2017] NSWCA 306

Australian Leisure did not establish special circumstances for security for costs. Ms Fagin's appeal could not be characterised as hopeless, unreasonable or harassing because she had an arguable complaint that the primary judge failed to deal with the audio speakers issue as an independent basis of relief and in the exercise of discretion. A security order would stifle the appeal, the appeal had a public interest element for nearby Fairy Meadow residents affected by noise, and impecuniosity alone did not tip the balance in Australian Leisure's favour.

Jurisdiction
Australia
Judgment Date
01 December 2017
Procedural Posture
Notice of Motion for Security for Costs in an Appeal From Land and Environment Court Class 4 Proceedings / Court of Appeal Motion
Outcome
Notice of motion dismissed with costs.
Legal Topics
['security for Costs' 'special Circumstances' 'impecuniosity' 'stifling an Appeal' 'development Consent Lapsing' 'exempt Development' 'noise Control']
['civil Procedure' 'appeals' 'planning and Environment Law'] ['security for Costs' 'special Circumstances' 'impecuniosity' 'stifling an Appeal' 'development Consent Lapsing' 'exempt Development' 'noise Control']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion for Security for Costs in an Appeal From Land and Environment Court Class 4 Proceedings / Court of Appeal Motion

Legal Issues

  1. 1 ['Whether special circumstances justified ordering security for costs of the appeal under UCPR r 51.50.' 'Whether the appeal was hopeless, unreasonable or of a harassing nature.' 'Whether a security for costs order would stifle the appeal.' 'Whether the appeal involved a public interest element.' 'Whether the appellant had an arguable complaint that the primary judge failed to deal with the audio speakers issue as an independent basis of relief.']

Ratio Decidendi

Australian Leisure did not establish special circumstances for security for costs. Ms Fagin's appeal could not be characterised as hopeless, unreasonable or harassing because she had an arguable complaint that the primary judge failed to deal with the audio speakers issue as an independent basis of relief and in the exercise of discretion. A security order would stifle the appeal, the appeal had a public interest element for nearby Fairy Meadow residents affected by noise, and impecuniosity alone did not tip the balance in Australian Leisure's favour.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['I dismiss the notice of motion with costs.']