Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 18

Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 18

Security for costs was refused because PaperlinX did not establish that the appellants' bona fide appeal had no real prospects of success, and in the circumstances the likely stultification of the appeal was accepted despite scant direct evidence. The procedural unfairness grounds, the construction ground concerning the Deed of Guarantee, and Mrs Canty's Contracts Review Act ground were each reasonably arguable on the material before the Court. A stay of execution was granted because the appellants were unable to pay the judgment debt, the appeal was reasonably arguable, there was no evidence of relevant prejudice to PaperlinX, and the appellants undertook to prosecute the appeal with...

Jurisdiction
Australia
Judgment Date
10 February 2014
Procedural Posture
Interlocutory Applications / Court of Appeal Motions for Security for Costs of Appeal and Stay of Execution Pending Appeal
Outcome
PaperlinX's motion for security for costs was dismissed; execution of the judgment orders was stayed pending determination of the appeal on the appellants' undertaking; PaperlinX was ordered to pay the appellants' costs of the two motions; the amended notice of motion was otherwise dismissed.
Legal Topics
['security for Costs of Appeal' 'stultification of Appeal' 'stay of Execution' 'guarantee and Indemnity' 'contracts Review Act Unjustness' 'procedural Fairness']
['civil Procedure' 'appellate Procedure' 'contract Law'] ['security for Costs of Appeal' 'stultification of Appeal' 'stay of Execution' 'guarantee and Indemnity' 'contracts Review Act Unjustness' 'procedural Fairness']

Case Brief

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Procedural Posture

Interlocutory Applications / Court of Appeal Motions for Security for Costs of Appeal and Stay of Execution Pending Appeal

Legal Issues

  1. 1 ["Whether special circumstances justified ordering the appellants to provide security for PaperlinX's costs of the appeal." 'Whether an order for security for costs would stultify a bona fide and reasonably arguable appeal.' 'Whether PaperlinX had shown that the appeal had no real prospects of success.' 'Whether execution of the judgment debt should be stayed pending determination of the appeal.']

Ratio Decidendi

Security for costs was refused because PaperlinX did not establish that the appellants' bona fide appeal had no real prospects of success, and in the circumstances the likely stultification of the appeal was accepted despite scant direct evidence. The procedural unfairness grounds, the construction ground concerning the Deed of Guarantee, and Mrs Canty's Contracts Review Act ground were each reasonably arguable on the material before the Court. A stay of execution was granted because the appellants were unable to pay the judgment debt, the appeal was reasonably arguable, there was no evidence of relevant prejudice to PaperlinX, and the appellants undertook to prosecute the appeal with...

Court Disposition

PaperlinX's motion for security for costs was dismissed; execution of the judgment orders was stayed pending determination of the appeal on the appellants' undertaking; PaperlinX was ordered to pay the appellants' costs of the two motions; the amended notice of motion was otherwise dismissed.

Orders

  • ['Dismiss the notice of motion filed 20 November 2013.' 'Upon the undertaking of the appellants to the Court to prosecute their appeal with reasonable expedition, execution of the judgment orders made by the Court on 17 December 2013 in proceeding 2011/145590 be stayed pending the determination by the Court of...