Brown v King [2022] NSWCA 75

Brown v King [2022] NSWCA 75

Although special circumstances were made out because the appellants could not meet an adverse costs order and the appeal appeared deficient with low prospects and likely to cause unnecessary costs, the discretion should not be exercised to order security. An order of any significant sum would likely stultify the appeal, and the respondent conceded that the orders below contained an irregularity affecting the principal amount because they did not account for proceeds from sale of the vineyard. In those circumstances it was not just to order security for costs, with the likely effect of ending the appeal.

Jurisdiction
Australia
Judgment Date
20 May 2022
Procedural Posture
Application for Security for Costs on Appeal / Notice of Motion Filed by the Respondent on 14 March 2022 in the Court of Appeal
Outcome
The respondent's application for security for costs was dismissed with costs.
Legal Topics
['security for Costs' 'special Circumstances' 'impecuniosity' 'stultification of Appeal' 'deficiency of Appeal' 'irregularity in Orders Below']
['civil Procedure' 'costs' 'appeals'] ['security for Costs' 'special Circumstances' 'impecuniosity' 'stultification of Appeal' 'deficiency of Appeal' 'irregularity in Orders Below']

Case Brief

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Procedural Posture

Application for Security for Costs on Appeal / Notice of Motion Filed by the Respondent on 14 March 2022 in the Court of Appeal

Legal Issues

  1. 1 ['Whether special circumstances existed under r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) to order security for costs of the appeal.' "Whether the appellants' impecuniosity, alleged delinquency in complying with court orders, and deficiencies in the appeal justified security for costs." 'Whether an order for security for costs would likely stultify the appeal.' "Whether the respondent's concession that the orders below contained an irregularity affecting the principal amount weighed against ordering security."]

Ratio Decidendi

Although special circumstances were made out because the appellants could not meet an adverse costs order and the appeal appeared deficient with low prospects and likely to cause unnecessary costs, the discretion should not be exercised to order security. An order of any significant sum would likely stultify the appeal, and the respondent conceded that the orders below contained an irregularity affecting the principal amount because they did not account for proceeds from sale of the vineyard. In those circumstances it was not just to order security for costs, with the likely effect of ending the appeal.

Court Disposition

The respondent's application for security for costs was dismissed with costs.

Orders

  • ["The respondent's application for security for costs made by notice of motion filed on 14 March 2022 is dismissed with costs."]