Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336

Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336

Given the poor prospects of the appellant's appeal and the prompt application for security, it is appropriate to order security for costs in the sum of $8333, calculated based on a one-day hearing, notwithstanding potential impact on the appellant's ability to proceed.

Parties
Appellant: Richard Austin Upton; Respondent: Tasmanian Perpetual Trustees Pty Ltd
Jurisdiction
Australia
Judgment Date
12 October 2006
Procedural Posture
Appeal / Application for Security for Costs
Outcome
Security for costs ordered; appeal stayed pending provision of security; costs of motion awarded to respondent.
Legal Topics
Security for Costs, Appeal, Discretionary Factors, Stifling Appeal, Prospects of Success
Practice and Procedure Security for Costs Appeal Discretionary Factors Stifling Appeal Prospects of Success

Case Brief

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Parties

Richard Austin Upton

Appellant

Tasmanian Perpetual Trustees Pty Ltd

Respondent

Procedural Posture

Appeal / Application for Security for Costs

Legal Issues

  1. 1 Should an order for security for costs be made in the appeal?
  2. 2 Would such an order stifle the appeal?
  3. 3 Were the circumstances causing the appellant's inability to provide security caused by the respondent?

Ratio Decidendi

Given the poor prospects of the appellant's appeal and the prompt application for security, it is appropriate to order security for costs in the sum of $8333, calculated based on a one-day hearing, notwithstanding potential impact on the appellant's ability to proceed.

Court Disposition

Security for costs ordered; appeal stayed pending provision of security; costs of motion awarded to respondent.

Orders

  • The appellant is to provide security for the respondent's costs of the appeal in the sum of $8333 in such form as may be agreed between the parties or, failing agreement, in a form acceptable to the Tasmania District Registrar of the Court.
  • The appeal is stayed until such security is provided or until further order.