Khaled El Sayed v Sayed El Hawach (No 2) [2014] NSWCA 260

Khaled El Sayed v Sayed El Hawach (No 2) [2014] NSWCA 260

The respondents did not establish special circumstances because the Court was not prepared to find lack of bona fides, harassment or lack of financial frankness, and although the appeal might be weak, the asserted point of law was at least arguable and not so weak as to be unarguable. The precondition to exercising the discretion to order security for costs was therefore not satisfied.

Jurisdiction
Australia
Judgment Date
28 July 2014
Procedural Posture
Application for Security for Costs of an Appeal / Notice of Motion in the Court of Appeal
Outcome
Application for security for costs refused; amended notice of motion dismissed with costs.
Legal Topics
['security for Costs' 'special Circumstances' 'impecuniosity' 'stultification of Appeal' 'arguable Appeal']
['civil Procedure' 'appellate Procedure' 'costs'] ['security for Costs' 'special Circumstances' 'impecuniosity' 'stultification of Appeal' 'arguable Appeal']

Case Brief

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Procedural Posture

Application for Security for Costs of an Appeal / Notice of Motion in the Court of Appeal

Legal Issues

  1. 1 ['Whether the respondents established special circumstances under Pt 51 r 50 of the Uniform Civil Procedure Rules 2005 (NSW) to justify security for costs of the appeal.' "Whether the appellants' impecuniosity, alleged lack of bona fides, alleged harassment, alleged lack of frankness, asserted weak appeal and alleged lack of substantial benefit amounted to special circumstances." 'Whether an order for security would stifle or stultify a bona fide and reasonably arguable appeal.']

Ratio Decidendi

The respondents did not establish special circumstances because the Court was not prepared to find lack of bona fides, harassment or lack of financial frankness, and although the appeal might be weak, the asserted point of law was at least arguable and not so weak as to be unarguable. The precondition to exercising the discretion to order security for costs was therefore not satisfied.

Court Disposition

Application for security for costs refused; amended notice of motion dismissed with costs.

Orders

  • ['Amended notice of motion filed on 28 July 2014 dismissed with costs.']