Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd [2018] NSWCA 256

Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd [2018] NSWCA 256

A qualified stay was appropriate because Bundanoon had a reasonably arguable appeal and uncontested evidence showed that enforcing the full judgment would likely force liquidation and terminate the appeal; however, the stay did not extend to the unchallenged $566,426.97 or to the costs order, because that unchallenged amount could support the costs order. Security for costs was refused because Cenric did not establish special circumstances, Bundanoon's impecuniosity alone was insufficient, and a security order might frustrate a genuine, reasonably arguable appeal.

Jurisdiction
Australia
Judgment Date
07 November 2018
Procedural Posture
Appeal; Notices of Motion for Stay and Security for Costs / Court of Appeal Procedural Ruling Pending Determination of Appeal
Outcome
Stay granted in part; Cenric's motion for security for costs dismissed; costs of both motions ordered to be costs on the appeal.
Legal Topics
['stay Pending Appeal' 'security for Costs' 'impecuniosity' 'arguable Appeal' 'appeal Rendered Nugatory']
['civil Procedure' 'appeals'] ['stay Pending Appeal' 'security for Costs' 'impecuniosity' 'arguable Appeal' 'appeal Rendered Nugatory']

Case Brief

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Procedural Posture

Appeal; Notices of Motion for Stay and Security for Costs / Court of Appeal Procedural Ruling Pending Determination of Appeal

Legal Issues

  1. 1 ['Whether Order 2 entering judgment for Cenric against Bundanoon should be stayed pending determination of the appeal.' 'Whether the costs order made against Bundanoon should be stayed pending determination of the appeal.' "Whether Bundanoon should provide security for Cenric's costs of the appeal."]

Ratio Decidendi

A qualified stay was appropriate because Bundanoon had a reasonably arguable appeal and uncontested evidence showed that enforcing the full judgment would likely force liquidation and terminate the appeal; however, the stay did not extend to the unchallenged $566,426.97 or to the costs order, because that unchallenged amount could support the costs order. Security for costs was refused because Cenric did not establish special circumstances, Bundanoon's impecuniosity alone was insufficient, and a security order might frustrate a genuine, reasonably arguable appeal.

Court Disposition

Stay granted in part; Cenric's motion for security for costs dismissed; costs of both motions ordered to be costs on the appeal.

Orders

  • ['Order that until determination of the appeal Order 2 made in the Equity Division on 25 October 2018 be stayed to the extent only that the judgment for which the Order provides exceeds $566,426.97.' "Dismiss Cenric's Notice of Motion seeking an order that Bundanoon provide security for Cenric's costs of the...