Fleming v Marshall [2010] NSWCA 356

Fleming v Marshall [2010] NSWCA 356

There are no special circumstances justifying an order for security for costs under r 51.50; difficulties in enforcement in New York, absent more, do not suffice; the application for security is dismissed with costs.

Parties
First Appellant: Francis G Fleming; Second Appellant: Marc S Moller; Third Appellant: Steven R Pounian; Fourth Appellant: James P Kreindler; Fifth Appellant: David C Cook; Sixth Appellant: David Beekman; Seventh Appellant: Bianca I Rodriguez; Eighth Appellant: Noah H Kushlefsky; Ninth Appellant: Robert J Spragg; Tenth Appellant: Brian J Alexander; Eleventh Appellant: Justin T Green; First Respondent: Margaret Lesley Marshall; Second Respondent: Kim Neil Marshall
Jurisdiction
Australia
Judgment Date
10 December 2010
Procedural Posture
Notice of Motion for Security for Costs (appellate Proceedings) / Post Leave to Appeal, Pre Substantive Appellate Hearing
Outcome
Notice of Motion for security for costs dismissed with costs, subject to prior orders.
Legal Topics
Security for Costs, Appellate Procedure, Forum Non Conveniens
Civil Procedure Security for Costs Appellate Procedure Forum Non Conveniens

Case Brief

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Parties

Francis G Fleming

First Appellant

Marc S Moller

Second Appellant

Steven R Pounian

Third Appellant

James P Kreindler

Fourth Appellant

David C Cook

Fifth Appellant

David Beekman

Sixth Appellant

Bianca I Rodriguez

Seventh Appellant

Noah H Kushlefsky

Eighth Appellant

Robert J Spragg

Ninth Appellant

Brian J Alexander

Tenth Appellant

Justin T Green

Eleventh Appellant

Margaret Lesley Marshall

First Respondent

Kim Neil Marshall

Second Respondent

Procedural Posture

Notice of Motion for Security for Costs (appellate Proceedings) / Post Leave to Appeal, Pre Substantive Appellate Hearing

Legal Issues

  1. 1 Whether 'special circumstances' exist to justify ordering security for costs of an appeal under r 51.50 of the Uniform Civil Procedure Rules
  2. 2 Whether the fact that the appellants are resident in New York and there may be enforcement difficulties constitutes such special circumstances
  3. 3 Whether security may be ordered for costs of leave to appeal

Ratio Decidendi

There are no special circumstances justifying an order for security for costs under r 51.50; difficulties in enforcement in New York, absent more, do not suffice; the application for security is dismissed with costs.

Court Disposition

Notice of Motion for security for costs dismissed with costs, subject to prior orders.

Orders

  • Subject to the orders made by Handley AJA, the Notice of Motion is dismissed with costs, including such costs of the Notice of Motion as were reserved by Handley AJA.