Ulladulla Creative Images Pty Ltd v Tibbles [2021] NSWCA 200

Ulladulla Creative Images Pty Ltd v Tibbles [2021] NSWCA 200

The extension of time was granted because the delay was only one day, was explained as oversight, caused no identified prejudice, and was not opposed. The stay was refused because, although the appeal was arguable and might be rendered nugatory without a stay, the applicant's financial position, indicia of insolvency, unexplained disposition of the $380,000, and prejudice to the respondents from deferring potential liquidation remedies meant a stay would only be appropriate with additional security such as fixed and floating charges from the applicant and Mr Corrin, which was not offered. Security for costs was ordered because credible evidence showed the applicant corporation may be...

Jurisdiction
Australia
Judgment Date
16 August 2021
Procedural Posture
Procedural Rulings in Court of Appeal Concerning Extension of Time to Appeal, Stay of District Court Judgment, and Security for Costs / Application for Extension of Time, Stay, and Respondents' Motion for Security for Costs of Appeal
Outcome
Time to appeal extended; application for stay otherwise dismissed with costs; security for costs ordered in the sum of $15,000.
Legal Topics
['extension of Time to Appeal' 'stay of Judgment Pending Appeal' 'security for Costs on Appeal' 'corporate Insolvency Indicators' 'corporations Act 2001 (cth), S 1335']
['civil Procedure' 'appeals' 'costs' 'corporations'] ['extension of Time to Appeal' 'stay of Judgment Pending Appeal' 'security for Costs on Appeal' 'corporate Insolvency Indicators' 'corporations Act 2001 (cth), S 1335']

Case Brief

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Procedural Posture

Procedural Rulings in Court of Appeal Concerning Extension of Time to Appeal, Stay of District Court Judgment, and Security for Costs / Application for Extension of Time, Stay, and Respondents' Motion for Security for Costs of Appeal

Legal Issues

  1. 1 ['Whether time should be extended to file and serve a notice of appeal where notice of intention to appeal was served one day out of time.' 'Whether judgment below should be stayed pending appeal.' "Whether the applicant corporation should provide security for the respondents' costs of the appeal." 'What amount of security for costs should be ordered.']

Ratio Decidendi

The extension of time was granted because the delay was only one day, was explained as oversight, caused no identified prejudice, and was not opposed. The stay was refused because, although the appeal was arguable and might be rendered nugatory without a stay, the applicant's financial position, indicia of insolvency, unexplained disposition of the $380,000, and prejudice to the respondents from deferring potential liquidation remedies meant a stay would only be appropriate with additional security such as fixed and floating charges from the applicant and Mr Corrin, which was not offered. Security for costs was ordered because credible evidence showed the applicant corporation may be...

Court Disposition

Time to appeal extended; application for stay otherwise dismissed with costs; security for costs ordered in the sum of $15,000.

Orders

  • ['Time for the applicant to file and serve a notice of appeal substantially in the form annexed to its amended notice of motion filed 29 July 2021 be extended to 23 August 2021.' 'The amended notice of motion filed 2 August 2021 is otherwise dismissed with costs.' "The applicant provide security in a form acceptable...