Marks-Isaacs v Fowler & Ors [2005] NSWCA 37

Marks-Isaacs v Fowler & Ors [2005] NSWCA 37

Special circumstances justified an order for security because the appellant failed to fully disclose his financial position or swear an affidavit, his disclosed circumstances suggested a substantial income and apparently luxurious lifestyle, the evidence did not show that moderate security would stultify the appeal, and a preliminary assessment showed the appeal had little prospects of success because the essential findings dismissing the professional negligence claims could be supported independently of the trial Judge's adverse credit findings. Security was ordered only for one set of costs because there was no discernible conflict between the respondents on the appeal.

Jurisdiction
Australia
Judgment Date
02 March 2005
Procedural Posture
Appeal; Notices of Motion for Security for Costs / Court of Appeal Motions After District Court Professional Negligence Action Was Dismissed and Appellant Appealed as of Right
Outcome
Respondents' motions for security for costs granted in part; appellant ordered to provide $15,000 security for one set of costs between the respondents.
Legal Topics
['security for Costs on Appeal' 'special Circumstances' 'disclosure of Financial Position' 'prospects of Success on Appeal' 'one Set of Costs Between Respondents']
['civil Procedure' 'appeals' 'professional Negligence'] ['security for Costs on Appeal' 'special Circumstances' 'disclosure of Financial Position' 'prospects of Success on Appeal' 'one Set of Costs Between Respondents']

Case Brief

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Procedural Posture

Appeal; Notices of Motion for Security for Costs / Court of Appeal Motions After District Court Professional Negligence Action Was Dismissed and Appellant Appealed as of Right

Legal Issues

  1. 1 ['Whether special circumstances were established under Supreme Court Rules 1970 Pt 51 r 16(1) to order security for costs of the appeal.' 'Whether the appellant had sufficiently disclosed his financial position and whether an order for moderate security would stultify the appeal.' 'Whether a preliminary assessment of the merits showed the appeal had sufficient prospects to resist security.' 'Whether security should be assessed on the basis of one set of costs between the respondents.']

Ratio Decidendi

Special circumstances justified an order for security because the appellant failed to fully disclose his financial position or swear an affidavit, his disclosed circumstances suggested a substantial income and apparently luxurious lifestyle, the evidence did not show that moderate security would stultify the appeal, and a preliminary assessment showed the appeal had little prospects of success because the essential findings dismissing the professional negligence claims could be supported independently of the trial Judge's adverse credit findings. Security was ordered only for one set of costs because there was no discernible conflict between the respondents on the appeal.

Court Disposition

Respondents' motions for security for costs granted in part; appellant ordered to provide $15,000 security for one set of costs between the respondents.

Orders

  • ['Order the appellant to provide security for one set of costs between the respondents in the amount of $15,000 to be deposited in a joint interest bearing account with a bank or building society in the names of the solicitor for the appellant and a solicitor for the respondents as agreed between them or as...