Lawrence Waterhouse Pty Ltd v Port Stephens Council [2008] NSWCA 235

Lawrence Waterhouse Pty Ltd v Port Stephens Council [2008] NSWCA 235

Although the period since default was short, the appellant had failed to comply with the security for costs order, had burdened or disposed of property in circumstances exposing the respondent to the risk of irrecoverable costs, and offered no concrete assurance of timely compliance; the discretion under UCPR 42.21(3) should therefore be exercised to dismiss the appeal.

Jurisdiction
Australia
Judgment Date
15 September 2008
Procedural Posture
Civil Appeal / Notice of Motion to Dismiss Appeal Under Uniform Civil Procedure Rules 2005 42.21(3) for Failure to Comply With a Security for Costs Order
Outcome
Appeal dismissed.
Legal Topics
['security for Costs' 'dismissal for Non Compliance With Court Order' 'appeals' 'prejudice From Irrecoverable Costs']
['practice and Procedure' 'civil Procedure' 'costs'] ['security for Costs' 'dismissal for Non Compliance With Court Order' 'appeals' 'prejudice From Irrecoverable Costs']

Case Brief

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Procedural Posture

Civil Appeal / Notice of Motion to Dismiss Appeal Under Uniform Civil Procedure Rules 2005 42.21(3) for Failure to Comply With a Security for Costs Order

Legal Issues

  1. 1 ['Whether the appeal should be dismissed pursuant to Uniform Civil Procedure Rules 2005 42.21(3) because the appellant failed to provide security for costs as ordered.' "Whether the appellant's dealings with its assets exposed the respondent to prejudice in recovering costs." 'Whether the appellant had provided any sufficient basis or proposal for compliance with the security for costs order.']

Ratio Decidendi

Although the period since default was short, the appellant had failed to comply with the security for costs order, had burdened or disposed of property in circumstances exposing the respondent to the risk of irrecoverable costs, and offered no concrete assurance of timely compliance; the discretion under UCPR 42.21(3) should therefore be exercised to dismiss the appeal.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "Appellant to pay respondent's costs as agreed or as assessed."]