Carter v Mehmet (No 2) [2021] NSWCA 333

Carter v Mehmet (No 2) [2021] NSWCA 333

Since the appellants succeeded in their appeal and no order for costs was made in favour of the respondents, the basis for the security for costs no longer exists and the funds should be returned.

Parties
First Appellant: Murray John Carter; Second Appellant: The Wheel Resort Pty Ltd; Third Appellant: Cathscompany Pty Ltd; First Respondent: Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust; Second Respondent: Cameron Mehmet t/as ATF Cameron Mehmet Testamentary Trust; Third Respondent: Errol Mehmet t/as ATF Errol J Mehmet Testamentary Trust; Fourth Respondent: Cheers Aviation Pty Ltd t/as ATF KMCG Investment Trust; Fifth Respondent: Matthew Timothy Cheers
Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Appeal / Consequential Orders Following Successful Appeal
Outcome
Orders made for release of security for costs and for payment of motion costs to the appellants.
Legal Topics
Security for Costs, Costs, Release of Funds, Impecuniosity
Civil Procedure Security for Costs Costs Release of Funds Impecuniosity

Case Brief

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Parties

Murray John Carter

First Appellant

The Wheel Resort Pty Ltd

Second Appellant

Cathscompany Pty Ltd

Third Appellant

Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust

First Respondent

Cameron Mehmet t/as ATF Cameron Mehmet Testamentary Trust

Second Respondent

Errol Mehmet t/as ATF Errol J Mehmet Testamentary Trust

Third Respondent

Cheers Aviation Pty Ltd t/as ATF KMCG Investment Trust

Fourth Respondent

Matthew Timothy Cheers

Fifth Respondent

Procedural Posture

Appeal / Consequential Orders Following Successful Appeal

Legal Issues

  1. 1 Whether the sum paid into Court as security for costs should be released to the appellants following a successful appeal
  2. 2 Entitlement to costs of the motion seeking return of security for costs

Ratio Decidendi

Since the appellants succeeded in their appeal and no order for costs was made in favour of the respondents, the basis for the security for costs no longer exists and the funds should be returned.

Court Disposition

Orders made for release of security for costs and for payment of motion costs to the appellants.

Orders

  • The sum of $40,000 paid into Court by the appellants on 29 July 2021 be released to the appellants forthwith.
  • The respondents pay the costs of the appellants of the motion seeking return of the sum paid into Court as security for costs.