Batterham v Makeig (No 2) [2009] NSWCA 314

Batterham v Makeig (No 2) [2009] NSWCA 314

The word "plaintiff" in Rule 42.21(1)(a) encompasses an appellant even if the appellant was not a plaintiff in the court below. Because it was common ground that the first appellant was ordinarily resident outside New South Wales, and because his residence outside Australia, likely enforcement difficulties, and limited financial resources outweighed the factors relied on against security, the first appellant was required to furnish security. The appropriate amount was $30,000, representing likely party and party costs rather than the $50,000 solicitor and client estimate.

Jurisdiction
Australia
Judgment Date
16 October 2009
Procedural Posture
Security for Costs of Appeal; Costs of Notices of Motion / Court of Appeal Ruling on Respondent's Notice of Motion for Security for Costs and Costs of Motions
Outcome
Security for costs ordered against the first appellant; proceedings stayed until security is provided; costs orders made.
Legal Topics
['security for Costs' 'appeal Proceedings' 'plaintiff Ordinarily Resident Outside New South Wales' 'stay of Proceedings' 'costs of Motions']
['civil Procedure' 'appellate Procedure'] ['security for Costs' 'appeal Proceedings' 'plaintiff Ordinarily Resident Outside New South Wales' 'stay of Proceedings' 'costs of Motions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Security for Costs of Appeal; Costs of Notices of Motion / Court of Appeal Ruling on Respondent's Notice of Motion for Security for Costs and Costs of Motions

Legal Issues

  1. 1 ['Whether a "plaintiff" in Rule 42.21(1)(a) of the Uniform Civil Procedure Rules 2005 includes an appellant who was not a plaintiff in the court below.' "Whether security for the respondent's costs of the appeal should be ordered against the first appellant." 'What amount of security should be provided.' "What costs orders should be made in respect of the parties' Notices of Motion."]

Ratio Decidendi

The word "plaintiff" in Rule 42.21(1)(a) encompasses an appellant even if the appellant was not a plaintiff in the court below. Because it was common ground that the first appellant was ordinarily resident outside New South Wales, and because his residence outside Australia, likely enforcement difficulties, and limited financial resources outweighed the factors relied on against security, the first appellant was required to furnish security. The appropriate amount was $30,000, representing likely party and party costs rather than the $50,000 solicitor and client estimate.

Court Disposition

Security for costs ordered against the first appellant; proceedings stayed until security is provided; costs orders made.

Orders

  • ['Order that the first appellant furnish security for the costs of the respondent of and incidental to the appeal in the amount of $30,000.' 'Stay the proceedings in this Court until such security is provided.' "Order that the first appellant pay the costs of the respondent of the respondent's Notice of Motion filed...