Du Bray v ACW [2020] FCA 1680

Du Bray v ACW [2020] FCA 1680

Security for costs in the amount of $50,000 is ordered because the appeal has limited prospects of success and there is a high risk, based on the appellant's past conduct, that any costs order in the respondent’s favour will not be satisfied. No sufficient evidence was provided to show that security would stifle the appeal. The primary judge's interpretation and application of s 47(1) of the Bankruptcy Act were consistent with authority, and no appellable error is self-evident.

Jurisdiction
Australia
Judgment Date
24 November 2020
Procedural Posture
Appeal / Interlocutory Application for Security for Costs
Outcome
Application for security for costs granted; orders made as to provision of security and costs.
Legal Topics
['security for Costs' 'bankruptcy Petitions' "creditor's Petition Verification" 'appeal Practice']
['practice and Procedure' 'bankruptcy' 'commercial Law'] ['security for Costs' 'bankruptcy Petitions' "creditor's Petition Verification" 'appeal Practice']

Case Brief

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Procedural Posture

Appeal / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 ['Whether security for costs should be ordered on appeal' "Proper application of s 47(1) of the Bankruptcy Act 1966 (Cth) regarding verification of creditor's petition" "Extent to which an appellant's prospects of success and past conduct justify security for costs" 'Whether the order for security would stifle the appeal']

Ratio Decidendi

Security for costs in the amount of $50,000 is ordered because the appeal has limited prospects of success and there is a high risk, based on the appellant's past conduct, that any costs order in the respondent’s favour will not be satisfied. No sufficient evidence was provided to show that security would stifle the appeal. The primary judge's interpretation and application of s 47(1) of the Bankruptcy Act were consistent with authority, and no appellable error is self-evident.

Court Disposition

Application for security for costs granted; orders made as to provision of security and costs.

Orders

  • ['The appellant is to provide security for the costs of the appeal in the sum of $50,000 on or before 8 December 2020.' 'In the event of non-compliance with Order 1, the appeal is stayed.' 'Liberty is reserved to either party to vary Order 2.' 'The appellant is to pay the costs of the respondent in respect to the...