Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262

Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262

Leave to appeal was granted and the appeal allowed because the primary judge materially relied on stultification and oppression to refuse security for costs, although Siennamia had not raised those grounds and the Carrano parties were not given an opportunity to be heard, causing practical injustice. The primary...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 December 2022
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Security for Costs / Concurrent Hearing of Leave Application With Appeal From District Court Orders Made on 19 August 2022
Outcome
Leave to appeal granted on ground 1; appeal allowed; District Court orders set aside; security for costs ordered.
Legal Topics
['security for Costs' 'leave to Appeal' 'procedural Fairness' 'stultification of Proceedings' 'exercise of Discretion']
['civil Procedure' 'corporations' 'appeals'] ['security for Costs' 'leave to Appeal' 'procedural Fairness' 'stultification of Proceedings' 'exercise of Discretion']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Security for Costs / Concurrent Hearing of Leave Application With Appeal From District Court Orders Made on 19 August 2022

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from an interlocutory order refusing security for costs.' 'Whether the primary judge denied procedural fairness by refusing security for costs on the basis of stultification or oppression when Siennamia had not raised those issues and the Carrano parties were not heard on them.' 'Whether it was open to find stultification without evidence of impecuniosity of those standing behind Siennamia.' 'Whether, on re-exercise of the discretion, Siennamia should provide security for costs and in what amount.']

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the primary judge materially relied on stultification and oppression to refuse security for costs, although Siennamia had not raised those grounds and the Carrano parties were not given an opportunity to be heard, causing practical injustice. The primary judge also erred in principle because there was no evidence that those standing behind Siennamia were impecunious. On re-exercising the discretion, there was reason to believe Siennamia would be unable to pay the Carrano parties' costs if ordered, there were no discretionary factors against security, and security of $125,000 in tranches was reasonable.

Court Disposition

Leave to appeal granted on ground 1; appeal allowed; District Court orders set aside; security for costs ordered.

Orders

  • ['Grant leave to appeal on ground 1.' 'Dispense with the filing of a notice of appeal.' 'Appeal allowed.' "Set aside the orders made by Levy SC DCJ on 19 August 2022, and in lieu, order that the plaintiff is to provide security for the first, second, third and fourth defendants' costs of the proceedings in the sum...