Antov v Bokan [2019] NSWCA 40

Antov v Bokan [2019] NSWCA 40

The Court dismissed the motion. A stay pending payment of the earlier quantified costs orders was not justified because no enforcement steps or demand for payment had been shown, Lidija had security for those orders through Radmila's estate share, and the orders appeared enforceable irrespective of the appeal outcome. Security for costs was also refused: the $130,000 sought was absurdly high and disproportionate to the confined appeal; any realistic security would have been only about $5,000 or $10,000; ordering that security while Lidija failed on the motion would create practical prejudice and further costs disputation; and the application was an exceptional distraction from the real...

Jurisdiction
Australia
Judgment Date
05 March 2019
Procedural Posture
Notice of Motion in Appeal Seeking Stay Pending Security for Costs or Payment of Prior Costs Orders / Court of Appeal Procedural Ruling
Outcome
Notice of motion filed on 8 January 2019 dismissed, with costs.
Legal Topics
['stay of Appeal' 'security for Costs' 'special Circumstances for Security Against a Natural Person' 'unpaid Costs Orders' 'proportionality of Costs']
['practice and Procedure' 'appeals' 'costs'] ['stay of Appeal' 'security for Costs' 'special Circumstances for Security Against a Natural Person' 'unpaid Costs Orders' 'proportionality of Costs']

Case Brief

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Procedural Posture

Notice of Motion in Appeal Seeking Stay Pending Security for Costs or Payment of Prior Costs Orders / Court of Appeal Procedural Ruling

Legal Issues

  1. 1 ['Whether the appeal should be stayed until the appellant provided security for costs in the sum of $130,000 or another amount.' 'Whether special circumstances justified ordering security for costs against a natural person under r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the appeal should be stayed until the appellant paid lump sum costs orders made by Kunc J on 8 May 2017.' "Whether the respondent's demand for security was proportionate and should result in any security order."]

Ratio Decidendi

The Court dismissed the motion. A stay pending payment of the earlier quantified costs orders was not justified because no enforcement steps or demand for payment had been shown, Lidija had security for those orders through Radmila's estate share, and the orders appeared enforceable irrespective of the appeal outcome. Security for costs was also refused: the $130,000 sought was absurdly high and disproportionate to the confined appeal; any realistic security would have been only about $5,000 or $10,000; ordering that security while Lidija failed on the motion would create practical prejudice and further costs disputation; and the application was an exceptional distraction from the real...

Court Disposition

Notice of motion filed on 8 January 2019 dismissed, with costs.

Orders

  • ['Notice of motion filed on 8 January 2019 dismissed.' 'Lidija Bokan is to pay the costs of the notice of motion.']