Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 79

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 79

The respondent did not establish reason to believe that the appellant would be unable to pay the costs of the appeal, that the appellant had divested assets to avoid the consequences of the proceedings, or that special circumstances existed. The appellant's financial statements and cash flow material showed a substantial, profitable business with significant net assets and projected positive cash flow, and the evidence about the garnishee accounts did not justify an inference of asset divestment.

Jurisdiction
Australia
Judgment Date
31 May 2022
Procedural Posture
Appeal; Application for Security for Costs / Notice of Motion by Respondent for Security for Costs of Appeal
Outcome
Respondent's notice of motion dismissed with costs.
Legal Topics
['security for Costs of Appeal' "corporate Appellant's Ability to Pay Costs" 'divesting Assets to Avoid Consequences of Proceedings' 'special Circumstances']
['civil Procedure' 'costs' 'corporations'] ['security for Costs of Appeal' "corporate Appellant's Ability to Pay Costs" 'divesting Assets to Avoid Consequences of Proceedings' 'special Circumstances']

Case Brief

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Procedural Posture

Appeal; Application for Security for Costs / Notice of Motion by Respondent for Security for Costs of Appeal

Legal Issues

  1. 1 ["Whether there was reason to believe that the appellant, being a corporation, would be unable to pay the respondent's costs of the appeal if ordered to do so." 'Whether there was reason to believe that the appellant had divested assets with the intention of avoiding the consequences of the proceedings.' 'Whether special circumstances existed warranting security for costs of the appeal.']

Ratio Decidendi

The respondent did not establish reason to believe that the appellant would be unable to pay the costs of the appeal, that the appellant had divested assets to avoid the consequences of the proceedings, or that special circumstances existed. The appellant's financial statements and cash flow material showed a substantial, profitable business with significant net assets and projected positive cash flow, and the evidence about the garnishee accounts did not justify an inference of asset divestment.

Court Disposition

Respondent's notice of motion dismissed with costs.

Orders

  • ["The respondent's notice of motion dated 5 April 2022 is dismissed, with costs."]