WINNOTE PTY LIMITED v PAGE & ORS [2005] NSWCA 362

WINNOTE PTY LIMITED v PAGE & ORS [2005] NSWCA 362

Although the power to order security was engaged and special circumstances existed because Winnote was an insolvent corporate appellant supported by a funder, security was not called for while Mr Roach remained a co-appellant, appeared to be a man of substantial means, and it was highly likely that costs would be awarded against both appellants if the appeal failed.

Jurisdiction
Australia
Judgment Date
28 October 2005
Procedural Posture
Application for Security for Costs of an Appeal / Court of Appeal Application
Outcome
Application dismissed with costs.
Legal Topics
['security for Costs' 'corporate Appellant in Liquidation' 'litigation Funding' 'special Circumstances' "co Appellant's Capacity to Meet Costs" 'delay']
['civil Procedure' 'corporations' 'costs'] ['security for Costs' 'corporate Appellant in Liquidation' 'litigation Funding' 'special Circumstances' "co Appellant's Capacity to Meet Costs" 'delay']

Case Brief

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Procedural Posture

Application for Security for Costs of an Appeal / Court of Appeal Application

Legal Issues

  1. 1 ['Whether s1335(1) of the Corporations Act 2001 (Cth) applies to appeals by corporate appellants.' 'Whether Pt 51 r16 of the Supreme Court Rules empowered the Court of Appeal to order security for costs in special circumstances.' 'Whether special circumstances existed where an insolvent corporation in liquidation was the principal appellant and was supported by a litigation funder.' 'Whether security should be refused because a solvent co-appellant remained in the appeal and costs were highly likely to be ordered against both appellants if the appeal failed.' 'Whether delay justified refusing security.']

Ratio Decidendi

Although the power to order security was engaged and special circumstances existed because Winnote was an insolvent corporate appellant supported by a funder, security was not called for while Mr Roach remained a co-appellant, appeared to be a man of substantial means, and it was highly likely that costs would be awarded against both appellants if the appeal failed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application should be dismissed with costs.' 'The parties are directed to approach the Registrar to obtain a fixture for a lengthy hearing.' "The matter is to be listed for further directions after the respondents' submissions are filed."]