Khattar v Khattar; Fayad v Khatter [2022] NSWCA 189

Khattar v Khattar; Fayad v Khatter [2022] NSWCA 189

Special circumstances existed because there was a substantial real risk that the applicants would not recover their appeal costs if successful, combined with Joseph Khattar's and Maria Fayad's frustration of enforcement attempts and, in Maria Fayad's appeal, the very weak prospects of several grounds. Balancing those matters with the absence of any submission that the appeals would be stultified and the appellants' apparent ability to fund their own costs, the Court exercised its discretion to order each appellant to provide security for costs and stayed each appeal until security was provided.

Jurisdiction
Australia
Judgment Date
21 September 2022
Procedural Posture
Application for Security for Costs of Appeals / Procedural Ruling in the Court of Appeal
Outcome
Applications for security for costs granted in each appeal; appeals stayed until security is provided.
Legal Topics
['security for Costs' 'special Circumstances' 'impecuniosity' 'enforcement of Judgment' 'stay of Appeal' 'uniform Civil Procedure Rules 2005 (nsw), R 51.50']
['civil Procedure' 'costs' 'appeals'] ['security for Costs' 'special Circumstances' 'impecuniosity' 'enforcement of Judgment' 'stay of Appeal' 'uniform Civil Procedure Rules 2005 (nsw), R 51.50']

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Procedural Posture

Application for Security for Costs of Appeals / Procedural Ruling in the Court of Appeal

Legal Issues

  1. 1 ['Whether special circumstances existed under Uniform Civil Procedure Rules 2005 (NSW), r 51.50 to order security for costs of each appeal.' 'Whether there was a real risk that the respondents to the appeals would not recover their costs if the appeals were unsuccessful.' 'Whether Joseph Khattar and Maria Fayad had frustrated attempts to enforce the judgment against them.' 'Whether the nature and merits of the appeals supported an order for security for costs.' 'Whether the Court should exercise its discretion to order security for costs and stay the appeals pending provision of security.']

Ratio Decidendi

Special circumstances existed because there was a substantial real risk that the applicants would not recover their appeal costs if successful, combined with Joseph Khattar's and Maria Fayad's frustration of enforcement attempts and, in Maria Fayad's appeal, the very weak prospects of several grounds. Balancing those matters with the absence of any submission that the appeals would be stultified and the appellants' apparent ability to fund their own costs, the Court exercised its discretion to order each appellant to provide security for costs and stayed each appeal until security was provided.

Court Disposition

Applications for security for costs granted in each appeal; appeals stayed until security is provided.

Orders

  • ["In 2022/142224, the appellant to provide within 14 days security in the sum of $35,405 for the respondents' costs of the appeal by payment of that amount into court." 'In 2022/142224, the appeal be stayed until the appellant has complied with the order to provide security.' "In 2022/142224, the appellant to pay...