Starr-Diamond v Diamond [2013] NSWCA 7

Starr-Diamond v Diamond [2013] NSWCA 7

Special circumstances justified security for costs because the appellant was impecunious, the first respondent was also in parlous financial circumstances, the appeal had little prospects of success, the notice of appeal sought to re-litigate extensive factual issues and was bad in form and content, the appeal was likely to be lengthy and expensive, and the first respondent would have no prospect of recovering her costs if successful. Although security would likely prevent the appellant continuing the appeal, refusing security would make the appellant's pursuit of the appeal an instrument of grave injustice to the first respondent.

Jurisdiction
Australia
Judgment Date
12 February 2013
Procedural Posture
Application for Security for Costs of an Appeal / Motion in the NSW Court of Appeal After Judgment at First Instance
Outcome
Security for costs ordered; appeal proceedings stayed until security is provided or further order; appellant to pay costs of the motion.
Legal Topics
['security for Costs on Appeal' 'special Circumstances' 'impecuniosity' 'prospects of Success of Appeal' 'stay of Appeal Proceedings']
['practice and Procedure' 'costs' 'property Relationships'] ['security for Costs on Appeal' 'special Circumstances' 'impecuniosity' 'prospects of Success of Appeal' 'stay of Appeal Proceedings']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application for Security for Costs of an Appeal / Motion in the NSW Court of Appeal After Judgment at First Instance

Legal Issues

  1. 1 ['Whether special circumstances existed under r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) to order security for costs of the appeal.' 'Whether the appeal was manifestly groundless, likely to involve unnecessary costs, or had poor prospects of success.' "Whether an order for security for costs would stifle the appellant's appeal and whether that consequence outweighed prejudice to the first respondent."]

Ratio Decidendi

Special circumstances justified security for costs because the appellant was impecunious, the first respondent was also in parlous financial circumstances, the appeal had little prospects of success, the notice of appeal sought to re-litigate extensive factual issues and was bad in form and content, the appeal was likely to be lengthy and expensive, and the first respondent would have no prospect of recovering her costs if successful. Although security would likely prevent the appellant continuing the appeal, refusing security would make the appellant's pursuit of the appeal an instrument of grave injustice to the first respondent.

Court Disposition

Security for costs ordered; appeal proceedings stayed until security is provided or further order; appellant to pay costs of the motion.

Orders

  • ['Pursuant to rule 51.50 of the Uniform Civil Procedure Rules the appellant is to provide security for the costs of the appeal in the amount of $80,000.' 'The appeal proceedings are to be stayed until such security is provided or until further order of the Court.' 'The appellant is to pay the costs of this motion.']