Kiri Te Kanawa v Leading Edge Events Australia Pty Limited & Ors [2007] NSWCA 187

Kiri Te Kanawa v Leading Edge Events Australia Pty Limited & Ors [2007] NSWCA 187

The stay of Order 7 should be extended because the first defendant had an arguable appeal and should not be in a worse position than at trial in relation to security for her costs, and the existing $50,000 personal guarantee was not adequate security; however, maintaining the full $250,000 security would likely over-secure her position, so the stay was made subject to discharge if the plaintiff provided a $100,000 bank guarantee.

Jurisdiction
Australia
Judgment Date
02 August 2007
Procedural Posture
Notice of Motion Concerning Stay of Discharge of Security for Costs Pending Summons for Leave to Appeal / Court of Appeal Application After Judgment in the Supreme Court Equity Division
Outcome
Stay extended subject to discharge upon provision of alternative security by bank guarantee; costs of the Notice of Motion to be costs in the cause.
Legal Topics
['security for Costs' 'stay Pending Leave to Appeal' 'costs Following the Event' 'discretionary Costs Orders']
['civil Procedure' 'costs'] ['security for Costs' 'stay Pending Leave to Appeal' 'costs Following the Event' 'discretionary Costs Orders']

Case Brief

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Procedural Posture

Notice of Motion Concerning Stay of Discharge of Security for Costs Pending Summons for Leave to Appeal / Court of Appeal Application After Judgment in the Supreme Court Equity Division

Legal Issues

  1. 1 ["Whether the stay of the operation of Order 7 discharging security for the first and fourth defendants' costs should continue until determination of the first defendant's Summons for Leave to Appeal and any appeal." "Whether maintaining the existing $250,000 security would over-secure the first defendant given the trial judge's assessment of the first defendant's costs position." "Whether the existing $50,000 personal guarantee provided adequate security for the first defendant's costs."]

Ratio Decidendi

The stay of Order 7 should be extended because the first defendant had an arguable appeal and should not be in a worse position than at trial in relation to security for her costs, and the existing $50,000 personal guarantee was not adequate security; however, maintaining the full $250,000 security would likely over-secure her position, so the stay was made subject to discharge if the plaintiff provided a $100,000 bank guarantee.

Court Disposition

Stay extended subject to discharge upon provision of alternative security by bank guarantee; costs of the Notice of Motion to be costs in the cause.

Orders

  • ["Subject to order 2, the operation of order 7 made by Bergin J on 8 June 2007 is stayed until the determination of the first defendant's Summons for Leave to Appeal and, if leave is granted, until seven days after the determination of the appeal." "Should the plaintiff provide security for the costs of the first...