Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434

Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434

Special circumstances existed because Mr Ballard was pursuing an extensive appeal that sought to revisit almost all factual and legal issues from a lengthy and expensive trial, the appeal faced substantial obstacles and had slim prospects, the respondents would incur significant costs and faced a real risk of difficulty recovering those costs given Mr Ballard's financial position, and the evidence did not establish that security would necessarily stifle the appeal. Security for costs was therefore ordered in staged tranches reflecting the timing of appeal work and likely recoverable costs.

Jurisdiction
Australia
Judgment Date
18 December 2012
Procedural Posture
Interlocutory Applications for Security for Costs of an Appeal / Court of Appeal Motions in Appeal From Decision of Mc Dougall J Dismissing Conspiracy Claims
Outcome
Applications granted; security for costs of the appeal ordered in favour of the respective respondents, with stays pending provision of security.
Legal Topics
['security for Costs of Appeal' 'special Circumstances' 'impecuniosity' 'staged Provision of Security' 'stay Pending Security' 'prospects of Appeal']
['practice and Procedure' 'civil Procedure' 'costs' 'appeals'] ['security for Costs of Appeal' 'special Circumstances' 'impecuniosity' 'staged Provision of Security' 'stay Pending Security' 'prospects of Appeal']

Case Brief

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Procedural Posture

Interlocutory Applications for Security for Costs of an Appeal / Court of Appeal Motions in Appeal From Decision of Mc Dougall J Dismissing Conspiracy Claims

Legal Issues

  1. 1 ['Whether special circumstances existed under rule 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) to order security for costs of the appeal.' 'Whether the scope and likely cost of the appeal, including an attempt to revisit almost all factual and legal issues, warranted security for costs.' "Whether Mr Ballard's financial position created a risk that the respondents would have difficulty enforcing any costs judgment in their favour on the appeal." 'Whether an order for security for costs would stifle the appeal.' 'Whether security should be provided on a staged basis.']

Ratio Decidendi

Special circumstances existed because Mr Ballard was pursuing an extensive appeal that sought to revisit almost all factual and legal issues from a lengthy and expensive trial, the appeal faced substantial obstacles and had slim prospects, the respondents would incur significant costs and faced a real risk of difficulty recovering those costs given Mr Ballard's financial position, and the evidence did not establish that security would necessarily stifle the appeal. Security for costs was therefore ordered in staged tranches reflecting the timing of appeal work and likely recoverable costs.

Court Disposition

Applications granted; security for costs of the appeal ordered in favour of the respective respondents, with stays pending provision of security.

Orders

  • ['Pursuant to rule 51.50 of the Uniform Civil Procedure Rules, the Appellant provide security for costs to the First and Second Respondents and to the Third to Fifth Respondents, respectively, in the sums and at the times specified for costs up to the order and up to and including the hearing of the appeal.'...