Shoal Bay Beach Constructions No 1 Pty Ltd v Mark Hickey & the persons listed in Schedule A to the Notice of Appeal trading as Sparke Helmore [2022] NSWCA 71

Shoal Bay Beach Constructions No 1 Pty Ltd v Mark Hickey & the persons listed in Schedule A to the Notice of Appeal trading as Sparke Helmore [2022] NSWCA 71

Security for costs of the appeal should be ordered because SBBC was impecunious and would be unable to meet an adverse costs order, the appeal was a separate process requiring Sparke Helmore to incur costs of defence, and the judgment sum and existing first-instance security did not provide an adequate assured source for appeal costs. However, the requested amount was reduced to $45,000 because the estimate pre-dated the cross-appeal and some costs of the appeal and cross-appeal would overlap, so security had to be confined to the appeal costs and assessed broadly.

Jurisdiction
Australia
Judgment Date
02 May 2022
Procedural Posture
Notice of Motion for Security for Costs of an Appeal / Court of Appeal Procedural Ruling; Ex Tempore Judgment
Outcome
Notice of motion granted in part; appellant ordered to provide security for costs of the appeal in the sum of $45,000, with stay consequences if security is not provided.
Legal Topics
['security for Costs' 'appeal and Cross Appeal' 'impecunious Corporate Appellant' 'costs of Notice of Motion' 'stay of Proceedings']
['civil Procedure' 'costs' 'appeals'] ['security for Costs' 'appeal and Cross Appeal' 'impecunious Corporate Appellant' 'costs of Notice of Motion' 'stay of Proceedings']

Case Brief

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Procedural Posture

Notice of Motion for Security for Costs of an Appeal / Court of Appeal Procedural Ruling; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the appellant should provide security for the respondents' costs of the appeal." "Whether the amount of security sought improperly included costs attributable to the respondents' cross-appeal." 'Whether the judgment sum paid into court or existing security for costs of the proceedings below meant further security for the appeal should not be ordered.' 'What amount of security should be ordered having regard to overlap between the appeal and cross-appeal.']

Ratio Decidendi

Security for costs of the appeal should be ordered because SBBC was impecunious and would be unable to meet an adverse costs order, the appeal was a separate process requiring Sparke Helmore to incur costs of defence, and the judgment sum and existing first-instance security did not provide an adequate assured source for appeal costs. However, the requested amount was reduced to $45,000 because the estimate pre-dated the cross-appeal and some costs of the appeal and cross-appeal would overlap, so security had to be confined to the appeal costs and assessed broadly.

Court Disposition

Notice of motion granted in part; appellant ordered to provide security for costs of the appeal in the sum of $45,000, with stay consequences if security is not provided.

Orders

  • ["Appellant to provide security for costs for the respondents' costs of the appeal in the sum of $45,000, such security to be provided by way of payment into Court or provision of irrevocable bank guarantee(s) issued by an Australian bank in a form acceptable to the defendants." 'The security in order 1 is to be...