Brundza v Robbie & Co [1952] HCA 49

Brundza v Robbie & Co [1952] HCA 49

Although the appellant's absence from the jurisdiction provided a prima facie ground for further security, the respondent had delayed applying despite knowing the appellant intended to leave Australia, the respondent was already indemnified for the costs of the action and had £50 security for the appeal, and an order at that stage would prejudice the appellant by delaying the appeal; in those circumstances the discretion to order further security should not be exercised.

Jurisdiction
Australia
Procedural Posture
Application for Further Security for Costs of an Appeal / Interlocutory Application Before Fullagar J After Statutory Security Was Paid and the Appeal Was Set Down for Hearing
Outcome
Application for further security for costs dismissed without prejudice to any further application if the appeal is not prosecuted with due diligence.
Legal Topics
['security for Costs' 'further Security for Costs' 'appellant Outside the Jurisdiction' 'delay in Making Application' 'discretionary Costs Orders']
['civil Procedure' 'appellate Procedure' 'costs'] ['security for Costs' 'further Security for Costs' 'appellant Outside the Jurisdiction' 'delay in Making Application' 'discretionary Costs Orders']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Further Security for Costs of an Appeal / Interlocutory Application Before Fullagar J After Statutory Security Was Paid and the Appeal Was Set Down for Hearing

Legal Issues

  1. 1 ['Whether further security for costs should be ordered against an appellant who had left the jurisdiction and was said to have no assets within the jurisdiction.' "Whether the respondent's delay in applying for further security should weigh against making the order." 'Whether ordering further security would prejudice the appellant by delaying the hearing of the appeal.']

Ratio Decidendi

Although the appellant's absence from the jurisdiction provided a prima facie ground for further security, the respondent had delayed applying despite knowing the appellant intended to leave Australia, the respondent was already indemnified for the costs of the action and had £50 security for the appeal, and an order at that stage would prejudice the appellant by delaying the appeal; in those circumstances the discretion to order further security should not be exercised.

Court Disposition

Application for further security for costs dismissed without prejudice to any further application if the appeal is not prosecuted with due diligence.

Orders

  • ['The application is dismissed without prejudice to any further application which may be made if the appeal is not prosecuted with due diligence.' "The costs of the application are to be the appellant's costs in the appeal." 'Certificate for counsel.']