TRANSGLOBAL CAPITAL PTY. LIMITED & ORS. v. YOLARNO PTY. LIMITED [2004] NSWCA 136

TRANSGLOBAL CAPITAL PTY. LIMITED & ORS. v. YOLARNO PTY. LIMITED [2004] NSWCA 136

The Court held that special circumstances justifying an order for security for costs under Pt.51 r.16 cannot be predicated upon a general rule based solely on impecuniosity. Each case must be determined on its own merits, and in this case, as impecuniosity was the only asserted relevant circumstance and would otherwise frustrate a meritorious appeal involving a substantial sum, no order for security was appropriate.

Parties
Appellants: Transglobal Capital Pty. Limited & Anor.; Respondent: Yolarno Pty. Limited (ACN 002 225 183)
Jurisdiction
Australia
Judgment Date
06 May 2004
Procedural Posture
Appeal / Review of Interlocutory Order Regarding Security for Costs and Stay of Appeal
Outcome
Appellants' application for review allowed; security for costs order and related stay/dismissal orders set aside; costs awarded to appellants.
Legal Topics
Security for Costs, Special Circumstances, Impecuniosity, Appeals, Stay of Execution
Civil Procedure Corporations Consumer Protection Security for Costs Special Circumstances Impecuniosity Appeals Stay of Execution

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Parties

Transglobal Capital Pty. Limited & Anor.

Appellants

Yolarno Pty. Limited (ACN 002 225 183)

Respondent

Procedural Posture

Appeal / Review of Interlocutory Order Regarding Security for Costs and Stay of Appeal

Legal Issues

  1. 1 Whether impecuniosity of the appellants constitutes 'special circumstances' for ordering security for costs under Pt.51 r.16 of the Supreme Court Rules
  2. 2 Whether there exists a general practice to protect respondents by ordering security for costs in appeals
  3. 3 Proper interpretation and application of Pt.51 r.16

Ratio Decidendi

The Court held that special circumstances justifying an order for security for costs under Pt.51 r.16 cannot be predicated upon a general rule based solely on impecuniosity. Each case must be determined on its own merits, and in this case, as impecuniosity was the only asserted relevant circumstance and would otherwise frustrate a meritorious appeal involving a substantial sum, no order for security was appropriate.

Court Disposition

Appellants' application for review allowed; security for costs order and related stay/dismissal orders set aside; costs awarded to appellants.

Orders

  • Set aside the Order made by Handley JA on 2 February 2004 staying the appeal for a period of 6 weeks.
  • Set aside the further Order made by Handley JA that the appellants provide security for the respondent's costs of the appeal.