McCardle v Johnson [2023] FCA 1369

McCardle v Johnson [2023] FCA 1369

Security for costs was ordered because the proceeding was in substance an application for leave to appeal and extensions of time after adverse interlocutory decisions, so the concern that security might stifle the proceeding carried less weight; the applicant was an undischarged bankrupt, accepted she could not meet an adverse costs order, had failed to pay previous costs orders and prior security, and there was a substantial risk the first respondent would not recover costs. The applicant did not show clear or obvious prospects of success, gave no cogent evidence that the first respondent caused her impecuniosity, and her public interest and res judicata objections did not justify...

Jurisdiction
Australia
Judgment Date
02 November 2023
Procedural Posture
Application for Security for Costs in a Proceeding Treated as an Application for Leave to Appeal and for Extensions of Time / Security for Costs Application Pending Determination of the Application for Leave to Appeal and for Extensions of Time
Outcome
Application for security for costs granted.
Legal Topics
['security for Costs' 'leave to Appeal' 'extensions of Time' 'undischarged Bankrupt' 'trustee in Bankruptcy' 'stifling an Appeal' 'res Judicata']
['practice and Procedure' 'bankruptcy and Insolvency' 'appeals'] ['security for Costs' 'leave to Appeal' 'extensions of Time' 'undischarged Bankrupt' 'trustee in Bankruptcy' 'stifling an Appeal' 'res Judicata']

Case Brief

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Procedural Posture

Application for Security for Costs in a Proceeding Treated as an Application for Leave to Appeal and for Extensions of Time / Security for Costs Application Pending Determination of the Application for Leave to Appeal and for Extensions of Time

Legal Issues

  1. 1 ["Whether the applicant should provide security for the first respondent's costs pending determination of the application for leave to appeal and for extensions of time." 'Whether the likelihood that a security for costs order would stifle the proceeding should weigh against making such an order where the proceeding is in the nature of an appeal or application for leave to appeal.' "Whether the applicant's impecuniosity, prospects of success, public interest arguments, and res judicata submission justified refusing security for costs."]

Ratio Decidendi

Security for costs was ordered because the proceeding was in substance an application for leave to appeal and extensions of time after adverse interlocutory decisions, so the concern that security might stifle the proceeding carried less weight; the applicant was an undischarged bankrupt, accepted she could not meet an adverse costs order, had failed to pay previous costs orders and prior security, and there was a substantial risk the first respondent would not recover costs. The applicant did not show clear or obvious prospects of success, gave no cogent evidence that the first respondent caused her impecuniosity, and her public interest and res judicata objections did not justify...

Court Disposition

Application for security for costs granted.

Orders

  • ["Pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) the applicant provide security in the sum of $10,000 inclusive of GST for the first respondent's costs of the application for leave to appeal and for extensions of time by payment into Court or in such other form as may be acceptable to the first...