Dubow v Official Receiver (NSW) [2013] FCA 709

Dubow v Official Receiver (NSW) [2013] FCA 709

Security for costs was ordered because the appeal had limited prospects of success, there was a real risk that any costs order against Ms Dubow would not be satisfied given the estimated deficiency in her bankrupt estate, there was no evidence that security would stifle the appeal, her impecuniosity was not shown to have been caused by the second respondent, no public interest factor weighed against security, and the second respondent as trustee was entitled to seek security rather than first exhaust estate assets held for creditors.

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Appeal From the Federal Circuit Court of Australia; Interlocutory Application for Security for Costs of Appeal / Security for Costs Application on Appeal
Outcome
The second respondent's application for security for costs was granted; Ms Dubow's affidavit sworn 12 July 2013 was rejected; the appeal was stayed pending security and would be dismissed if security was not provided.
Legal Topics
['security for Costs of Appeal' 'bankrupt Appellant' 'trustee in Bankruptcy' 'stay and Dismissal for Failure to Provide Security' 'affidavit Objections']
['practice and Procedure' 'bankruptcy' 'costs'] ['security for Costs of Appeal' 'bankrupt Appellant' 'trustee in Bankruptcy' 'stay and Dismissal for Failure to Provide Security' 'affidavit Objections']

Case Brief

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Procedural Posture

Appeal From the Federal Circuit Court of Australia; Interlocutory Application for Security for Costs of Appeal / Security for Costs Application on Appeal

Legal Issues

  1. 1 ["Whether Ms Dubow should provide security for the second respondent's costs of the appeal." "Whether Ms Dubow's affidavit sworn 12 July 2013 should be received in opposition to the application." 'Whether the appeal should be stayed and dismissed if security is not provided.' 'What amount of security for costs should be ordered.']

Ratio Decidendi

Security for costs was ordered because the appeal had limited prospects of success, there was a real risk that any costs order against Ms Dubow would not be satisfied given the estimated deficiency in her bankrupt estate, there was no evidence that security would stifle the appeal, her impecuniosity was not shown to have been caused by the second respondent, no public interest factor weighed against security, and the second respondent as trustee was entitled to seek security rather than first exhaust estate assets held for creditors.

Court Disposition

The second respondent's application for security for costs was granted; Ms Dubow's affidavit sworn 12 July 2013 was rejected; the appeal was stayed pending security and would be dismissed if security was not provided.

Orders

  • ['Pursuant to rule 36.09 of the Federal Court Rules 2011 (Cth), within 21 days of the date of these orders Ms Dubow provide security for the costs of the appeal of the second respondent in the amount of $25,000.00 in a form acceptable to the Registrar of the Court.' 'The appeal be stayed until security is provided.'...