McMillan v Coolah Home Base Pty Ltd [2023] NSWCA 172

McMillan v Coolah Home Base Pty Ltd [2023] NSWCA 172

Although the appeal was filed out of time and the explanation was not satisfactory, there was no substantial prejudice to respondents beyond ordinary costs and at least some grounds of appeal are fairly arguable; therefore, an extension of time is granted. Security for costs is justified in light of special circumstances including admitted impecuniosity, scale of appeal, and prospects. Leave is granted to proceed against the company in liquidation. Security should be set at $10,000 for the Kelly-Booker parties and $15,000 for the Administrators. Proceedings are stayed until security is paid.

Jurisdiction
Australia
Judgment Date
27 July 2023
Procedural Posture
Appeal / Rulings on Procedural Motions, Extension of Time, Security for Costs, Leave to Appeal
Outcome
Extension of time granted. Security for costs ordered. Leave to proceed against company in liquidation granted. Appeals stayed pending security. Notices of motion for strike out dismissed. Costs orders as specified.
Legal Topics
['extension of Time to Appeal' 'security for Costs' 'leave to Appeal' 'proprietary Estoppel' 'statutory Unconscionability' 'oppression in Corporations' 'negligence by Administrators']
['civil Procedure' 'corporations'] ['extension of Time to Appeal' 'security for Costs' 'leave to Appeal' 'proprietary Estoppel' 'statutory Unconscionability' 'oppression in Corporations' 'negligence by Administrators']

Case Brief

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Procedural Posture

Appeal / Rulings on Procedural Motions, Extension of Time, Security for Costs, Leave to Appeal

Legal Issues

  1. 1 ['Was the appeal filed out of time?' 'Should an extension of time be granted?' 'Is the appeal incompetent as against the Administrators?' 'Should the appellants provide security for costs?' 'Should leave be granted to appeal against Coolah Home Base Pty Ltd in liquidation?' 'Should costs orders from below be stayed?']

Ratio Decidendi

Although the appeal was filed out of time and the explanation was not satisfactory, there was no substantial prejudice to respondents beyond ordinary costs and at least some grounds of appeal are fairly arguable; therefore, an extension of time is granted. Security for costs is justified in light of special circumstances including admitted impecuniosity, scale of appeal, and prospects. Leave is granted to proceed against the company in liquidation. Security should be set at $10,000 for the Kelly-Booker parties and $15,000 for the Administrators. Proceedings are stayed until security is paid.

Court Disposition

Extension of time granted. Security for costs ordered. Leave to proceed against company in liquidation granted. Appeals stayed pending security. Notices of motion for strike out dismissed. Costs orders as specified.

Orders

  • ['Extension of time granted to file and serve Amended Notice of Appeal to 28 February 2023.' "Appellants to provide security within 28 days: $10,000 for second, third, fourth and seventh respondents' costs; $15,000 for fifth and sixth respondents' costs; payment into Court or agreed form." 'Proceedings stayed until...