Evans v Cleveland Investments Global Pty Ltd [2013] NSWCA 439

Evans v Cleveland Investments Global Pty Ltd [2013] NSWCA 439

Although a considerable period had elapsed since the security order and Mr Evans had been on notice of possible dismissal, the evidence did not show an inability to provide security; rather, Mr Evans maintained that he could provide the $15,000 in the relatively near future. With little evidence of prejudice to the respondents and because summary dismissal of an appeal as of right is an extreme measure, the appeal was not dismissed immediately. A final opportunity was granted, with dismissal to follow automatically if the ordered security was not provided by 4pm on 17 January 2014.

Jurisdiction
Australia
Judgment Date
09 December 2013
Procedural Posture
Interlocutory Applications / Court of Appeal Consideration for Dismissal for Want of Prosecution and Failure to Comply With an Order for Security for Costs
Outcome
Appeal conditionally dismissed if security in the amount of $15,000 is not provided by 4pm on Friday 17 January 2014; appellant ordered to pay respondents' costs of the day.
Legal Topics
['security for Costs' 'dismissal for Want of Prosecution' 'non Compliance With Court Orders' 'guillotine Order']
['practice and Procedure' 'civil Procedure'] ['security for Costs' 'dismissal for Want of Prosecution' 'non Compliance With Court Orders' 'guillotine Order']

Case Brief

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Procedural Posture

Interlocutory Applications / Court of Appeal Consideration for Dismissal for Want of Prosecution and Failure to Comply With an Order for Security for Costs

Legal Issues

  1. 1 ['Whether the appeal should be dismissed for want of prosecution arising from failures to appear at directions hearings.' 'Whether the appeal should be dismissed for failure to comply with the order made on 15 July 2013 requiring security for costs in the amount of $15,000.' 'Whether Mr Evans should be given a further and final opportunity to provide the ordered security.']

Ratio Decidendi

Although a considerable period had elapsed since the security order and Mr Evans had been on notice of possible dismissal, the evidence did not show an inability to provide security; rather, Mr Evans maintained that he could provide the $15,000 in the relatively near future. With little evidence of prejudice to the respondents and because summary dismissal of an appeal as of right is an extreme measure, the appeal was not dismissed immediately. A final opportunity was granted, with dismissal to follow automatically if the ordered security was not provided by 4pm on 17 January 2014.

Court Disposition

Appeal conditionally dismissed if security in the amount of $15,000 is not provided by 4pm on Friday 17 January 2014; appellant ordered to pay respondents' costs of the day.

Orders

  • ['In the event that security in the amount of $15,000 ordered on 15 July 2013, to be provided by way of an unconditional bank guarantee from an Australian trading bank, is not provided before 4pm on Friday 17 January 2014, the appeal is dismissed with costs.' "Mr Evans to pay the respondents' costs of today."]