Elskaf v GIO General Limited [2018] NSWCA 207

Elskaf v GIO General Limited [2018] NSWCA 207

Special circumstances were established because GIO faced a serious risk that it would be unable to recover any costs order, the appellant adduced no evidence that security would stultify the appeal, and the notice of appeal suggested very low prospects of success. Security for costs of the appeal was therefore ordered in the sum of $15,000 and the proceedings were stayed until security was provided.

Jurisdiction
Australia
Judgment Date
19 September 2018
Procedural Posture
Civil Appeal; Application for Security for Costs of the Appeal / Respondent's Notice of Motion for Security for Costs Heard in the Court of Appeal
Outcome
Motion granted; security for costs ordered and proceedings stayed until security is provided.
Legal Topics
['security for Costs of Appeal' 'special Circumstances' 'stay of Proceedings' 'prospects of Appeal' 'impecuniosity and Recovery Risk']
['civil Procedure' 'costs' 'appeals'] ['security for Costs of Appeal' 'special Circumstances' 'stay of Proceedings' 'prospects of Appeal' 'impecuniosity and Recovery Risk']

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Procedural Posture

Civil Appeal; Application for Security for Costs of the Appeal / Respondent's Notice of Motion for Security for Costs Heard in the Court of Appeal

Legal Issues

  1. 1 ["Whether special circumstances under UCPR r 51.50(1) warranted an order that the appellant provide security for the respondent's costs of the appeal." "Whether the appellant's financial position and the prospects of the appeal justified security for costs." 'What amount of security should be ordered.']

Ratio Decidendi

Special circumstances were established because GIO faced a serious risk that it would be unable to recover any costs order, the appellant adduced no evidence that security would stultify the appeal, and the notice of appeal suggested very low prospects of success. Security for costs of the appeal was therefore ordered in the sum of $15,000 and the proceedings were stayed until security was provided.

Court Disposition

Motion granted; security for costs ordered and proceedings stayed until security is provided.

Orders

  • ['Grant leave to the respondent to amend its notice of motion filed on 4 September 2018 to substitute "Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50" for "UCPR Rule 42.21".' 'Direct the respondent to file the amended notice of motion within seven days.' "Order the appellant to provide within fourteen days...