Kimberley Developments Pty Ltd v Bale [2024] NSWCA 12

Kimberley Developments Pty Ltd v Bale [2024] NSWCA 12

The notice of motion was dismissed because Ms Bale failed to establish the special circumstances required by UCPR r 51.50. The Court rejected unsupported affidavit evidence about Kimberley's asset position, found no evidence that Kimberley or Mr Darwiche had attempted to dispose of assets to avoid a costs order, found no comparable delinquency to Yu Xiao, and accepted that there was no sinister significance in only Kimberley and Mr Darwiche appealing from orders that affected Kimberley. Impecuniosity, without more, was insufficient.

Jurisdiction
Australia
Judgment Date
07 February 2024
Procedural Posture
Application for Security for Costs Pending Appeal / Notice of Motion in the Court of Appeal Before Hearing of Appeal
Outcome
The notice of motion was dismissed with costs.
Legal Topics
['security for Costs Pending Appeal' 'special Circumstances Under UCPR R 51.50' 'impecuniosity' 'adverse Costs Orders']
['civil Procedure' 'costs' 'appeals'] ['security for Costs Pending Appeal' 'special Circumstances Under UCPR R 51.50' 'impecuniosity' 'adverse Costs Orders']

Case Brief

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Procedural Posture

Application for Security for Costs Pending Appeal / Notice of Motion in the Court of Appeal Before Hearing of Appeal

Legal Issues

  1. 1 ['Whether special circumstances existed under Uniform Civil Procedure Rules 2005 (NSW), r 51.50 to order security for costs of the appeal.' 'Whether the respondents on the notice of motion were unable to meet any adverse costs order or had structured the appeal to avoid costs liability.' 'Whether the circumstances were analogous to Yu Xiao v BCEG International (Australia) Pty Ltd [2022] NSWCA 223.']

Ratio Decidendi

The notice of motion was dismissed because Ms Bale failed to establish the special circumstances required by UCPR r 51.50. The Court rejected unsupported affidavit evidence about Kimberley's asset position, found no evidence that Kimberley or Mr Darwiche had attempted to dispose of assets to avoid a costs order, found no comparable delinquency to Yu Xiao, and accepted that there was no sinister significance in only Kimberley and Mr Darwiche appealing from orders that affected Kimberley. Impecuniosity, without more, was insufficient.

Court Disposition

The notice of motion was dismissed with costs.

Orders

  • ['The notice of motion is dismissed with costs.']