Evans v Cleveland Investment Global Ltd [2013] NSWCA 230

Evans v Cleveland Investment Global Ltd [2013] NSWCA 230

The stay of execution was refused because Mr Evans did not show a proper basis for depriving the successful plaintiff of the fruits of its judgment, did not establish that enforcement would stultify the appeal, and there was nothing to suggest the respondents could not repay the judgment debt if the appeal succeeded. Security for costs was ordered because the evidence showed that approximately $17,600 had been withdrawn from an account subject to freezing orders and transferred to accounts in Mr Evans' name; whether this was contrary to the orders or done to protect Cleveland, it constituted special circumstances under r 51.50, and there was no evidence that security of $15,000 would...

Jurisdiction
Australia
Judgment Date
15 July 2013
Procedural Posture
Interlocutory Applications / Court of Appeal Motions for Stay of Execution Pending Appeal and Security for Costs
Outcome
Notice of Motion for stay of execution dismissed with costs; respondents' motion for security for costs granted in part; proceedings stayed until security is given.
Legal Topics
['security for Costs of Appeal' 'stay of Execution Pending Appeal' 'special Circumstances' 'mareva Freezing Orders' 'withdrawal of Funds From Frozen Account']
['costs' 'civil Procedure' 'appellate Practice'] ['security for Costs of Appeal' 'stay of Execution Pending Appeal' 'special Circumstances' 'mareva Freezing Orders' 'withdrawal of Funds From Frozen Account']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the appellant had shown a proper basis for a stay of execution of the judgment pending appeal.' "Whether special circumstances justified an order that the appellant provide security for the respondents' costs of the appeal." 'Whether withdrawals from an account subject to Mareva freezing orders constituted special circumstances for security for costs.' 'Whether ordering security would stultify the appeal.']

Ratio Decidendi

The stay of execution was refused because Mr Evans did not show a proper basis for depriving the successful plaintiff of the fruits of its judgment, did not establish that enforcement would stultify the appeal, and there was nothing to suggest the respondents could not repay the judgment debt if the appeal succeeded. Security for costs was ordered because the evidence showed that approximately $17,600 had been withdrawn from an account subject to freezing orders and transferred to accounts in Mr Evans' name; whether this was contrary to the orders or done to protect Cleveland, it constituted special circumstances under r 51.50, and there was no evidence that security of $15,000 would...

Court Disposition

Notice of Motion for stay of execution dismissed with costs; respondents' motion for security for costs granted in part; proceedings stayed until security is given.

Orders

  • ['Dismiss Notice of Motion for stay of execution with costs.' 'Order that pursuant to r 42.21 and r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) the appellant provide security for the costs of the first and second respondents within twenty-eight days of today in the amount of $15,000 by way of an...