The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157

The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157

Because the appeal was at least reasonably arguable, the existing interlocutory regime had been in place for a long period, the likely period until the appeal hearing was short, the appellants provided the usual undertaking and support for it, and the respondents had not earlier sought to vary the interlocutory regime despite asserted changed circumstances, the stay should continue until further order. Security for costs was ordered only in the amount of $55,000 proffered by the appellants because there was a single appeal, the respondents' attempt to divide costs between appellants was misconceived, the likely appeal length and party-party costs did not justify a higher amount, and...

Jurisdiction
Australia
Judgment Date
09 August 2022
Procedural Posture
Appeal; Procedural Rulings on Stay of Execution and Security for Costs / Interlocutory Motions in the Court of Appeal
Outcome
Stay continued until further order; security for costs ordered in the amount of $55,000; respondents' notice of motion otherwise dismissed; appellants awarded costs of both motions on an ordinary basis up to 22 June 2022 and on an indemnity basis thereafter.
Legal Topics
['stay of Execution Pending Appeal' 'security for Costs on Appeal' 'costs of Interlocutory Motions' 'overriding Purpose and Proportionality' 'notice of Appeal and Particulars']
['civil Procedure' 'appellate Procedure'] ['stay of Execution Pending Appeal' 'security for Costs on Appeal' 'costs of Interlocutory Motions' 'overriding Purpose and Proportionality' 'notice of Appeal and Particulars']

Case Brief

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Procedural Posture

Appeal; Procedural Rulings on Stay of Execution and Security for Costs / Interlocutory Motions in the Court of Appeal

Legal Issues

  1. 1 ['Whether orders 4, 5 and 6 made in the Equity Division should continue to be stayed pending the appeal.' 'Whether the respondents should receive security for costs of the appeal in an amount greater than $55,000.' 'Whether the appeal should be treated as one appeal or divided between the grounds advanced by the two appellants for security for costs purposes.' "Whether costs of the motions should be ordered on an ordinary basis or indemnity basis after the appellants' offer dated 22 June 2022."]

Ratio Decidendi

Because the appeal was at least reasonably arguable, the existing interlocutory regime had been in place for a long period, the likely period until the appeal hearing was short, the appellants provided the usual undertaking and support for it, and the respondents had not earlier sought to vary the interlocutory regime despite asserted changed circumstances, the stay should continue until further order. Security for costs was ordered only in the amount of $55,000 proffered by the appellants because there was a single appeal, the respondents' attempt to divide costs between appellants was misconceived, the likely appeal length and party-party costs did not justify a higher amount, and...

Court Disposition

Stay continued until further order; security for costs ordered in the amount of $55,000; respondents' notice of motion otherwise dismissed; appellants awarded costs of both motions on an ordinary basis up to 22 June 2022 and on an indemnity basis thereafter.

Orders

  • ['Noting the provision of the usual undertaking by each of the appellants, order 7(a) made in the Equity Division on 5 April 2022 was varied by deleting "9am on 11/08/2022" and substituting "until further order".' "The appellants or either of them are to pay into Court the sum of $55,000 within 14 days as security...