Zong v Wang [2021] NSWCA 214

Zong v Wang [2021] NSWCA 214

Special circumstances were established because Mr Wang had obtained a judgment and incurred substantial costs that were unlikely to be recovered from the impecunious Mr Zong, would face further unrecoverable costs if required to defend the appeal, Mr Zong was receiving appeal funding from an undisclosed source and did not claim security would stultify the appeal, and Mr Zong and AYC had not been diligent in complying with subpoenas and notices to produce. Although the appeal was not shown to be hopeless, these matters justified ordering security for costs in the amount of $50,000 and staying the appeal until security was provided.

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Application for Security for Costs on Appeal / Notice of Motion Filed 14 July 2021 in the Court of Appeal From Orders of the District Court of New South Wales Made on 19 May 2021
Outcome
Application for security for costs granted.
Legal Topics
['security for Costs on Appeal' 'special Circumstances Under UCPR R 51.50' 'stay of Appeal Pending Security' 'non Compliance With Subpoenas and Notices to Produce' 'misleading or Deceptive Conduct in Underlying Proceedings']
['costs' 'civil Procedure' 'appeals' 'australian Consumer Law'] ['security for Costs on Appeal' 'special Circumstances Under UCPR R 51.50' 'stay of Appeal Pending Security' 'non Compliance With Subpoenas and Notices to Produce' 'misleading or Deceptive Conduct in Underlying Proceedings']

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Procedural Posture

Application for Security for Costs on Appeal / Notice of Motion Filed 14 July 2021 in the Court of Appeal From Orders of the District Court of New South Wales Made on 19 May 2021

Legal Issues

  1. 1 ['Whether special circumstances warranted an order for security for costs of the appeal under UCPR r 51.50.' "Whether the appellants' impecuniosity, non-compliance with curial procedure, non-payment of the judgment debt, and funding from an undisclosed source supported an order for security." 'Whether the asserted weakness or strength of the appeal supported or opposed the making of a security for costs order.' 'What amount of security was appropriate if security was ordered.']

Ratio Decidendi

Special circumstances were established because Mr Wang had obtained a judgment and incurred substantial costs that were unlikely to be recovered from the impecunious Mr Zong, would face further unrecoverable costs if required to defend the appeal, Mr Zong was receiving appeal funding from an undisclosed source and did not claim security would stultify the appeal, and Mr Zong and AYC had not been diligent in complying with subpoenas and notices to produce. Although the appeal was not shown to be hopeless, these matters justified ordering security for costs in the amount of $50,000 and staying the appeal until security was provided.

Court Disposition

Application for security for costs granted.

Orders

  • ['The First Respondent provide security for costs in the sum of $50,000 in the form of a bank guarantee or other form acceptable to the Registrar.' 'The appeal be stayed until security is provided in accordance with Order 1.' "If security is not provided in accordance with Order 1 within 28 days of these orders, the...