Taouk v Assure (NSW) Pty Ltd [2017] NSWCA 160

Taouk v Assure (NSW) Pty Ltd [2017] NSWCA 160

The respondent did not establish a sufficient basis for security for costs. The appellant's alleged delay, non-compliance and non-payment of first instance costs did not justify security for costs of the appeal because the relevant loss did not arise from prosecution of the appeal. The evidence concerning transfers of the Belfield and Guildford properties did not provide a reasonable basis to believe that the appellant caused assets to be divested with the intention of avoiding enforcement of an adverse costs order. The respondent also failed to establish that the appellant lacked sufficient assets to satisfy an order for the respondent's costs of a one day appeal.

Jurisdiction
Australia
Judgment Date
29 June 2017
Procedural Posture
Civil Appeal; Notice of Motion for Security for Costs / Respondent's Application for Security for Costs of the Appeal
Outcome
The respondent's notice of motion filed 14 June 2017 was dismissed with costs.
Legal Topics
['security for Costs' 'uniform Civil Procedure Rules 2005 (nsw), Rr 42.21 and 51.50' 'inherent Jurisdiction' 'impecuniosity' 'divestment of Assets' 'non Compliance With Earlier Court Orders']
['civil Procedure' 'costs' 'appeals'] ['security for Costs' 'uniform Civil Procedure Rules 2005 (nsw), Rr 42.21 and 51.50' 'inherent Jurisdiction' 'impecuniosity' 'divestment of Assets' 'non Compliance With Earlier Court Orders']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether the appellant's alleged non-compliance with orders and delay in the proceedings below justified security for costs on appeal." 'Whether there was reason to believe the appellant had divested assets with the intention of avoiding the consequences of the appeal proceedings or an adverse costs order.' 'Whether the respondent established that the appellant lacked sufficient assets to satisfy a costs order for the appeal.']

Ratio Decidendi

The respondent did not establish a sufficient basis for security for costs. The appellant's alleged delay, non-compliance and non-payment of first instance costs did not justify security for costs of the appeal because the relevant loss did not arise from prosecution of the appeal. The evidence concerning transfers of the Belfield and Guildford properties did not provide a reasonable basis to believe that the appellant caused assets to be divested with the intention of avoiding enforcement of an adverse costs order. The respondent also failed to establish that the appellant lacked sufficient assets to satisfy an order for the respondent's costs of a one day appeal.

Court Disposition

The respondent's notice of motion filed 14 June 2017 was dismissed with costs.

Orders

  • ["The respondent's notice of motion filed 14 June 2017 is dismissed with costs."]