AILAKIS -v- OLIVERO [2013] WASCA 91
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 91 | |
| THE COURT OF APPEAL (WA) | 05/04/2013 | ||
| Case No: | CACV:152/2012 | 19 & 20 MARCH 2013 | |
| Coram: | PULLIN JA | 20/03/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| A | |||
| PDF Version |
| Parties: | ANTHONY AILAKIS RODNEY AILAKIS JUAN CARLOS OLIVERO |
Catchwords: | Practice and procedure Application for security for costs in an appeal Purpose of an order for security Relevance of O 25 r 1 of Rules of the Supreme Court 1971 (WA) Whether it applies in an appeal |
Legislation: | Rules of the Supreme Court 1971 (WA), O 25, r 1 Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1) |
Case References: | Carol Farrell by her next friend Ronald Charles Waugh v Royal Kings Park Tennis Club (Incorporated) [2007] WASCA 173 Cowell v Taylor (1885) 31 Ch D 34 Harlock v Ashberry (1881) 19 Ch D 84 Mann v Dabelstein [2006] WASCA 176 Pearson v Naydler [1977] 1 WLR 899 Philips Electronics Australia Pty Ltd v Matthews [2002] NSWCA 157; (2002) 54 NSWLR 598 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 Willoughby v Clayton Utz [2008] WASCA 93 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AILAKIS -v- OLIVERO [2013] WASCA 91 CORAM : PULLIN JA HEARD : 19 & 20 MARCH 2013 DELIVERED : 20 MARCH 2013 PUBLISHED : 5 APRIL 2013 FILE NO/S : CACV 152 of 2012 BETWEEN : ANTHONY AILAKIS
- First Appellant
RODNEY AILAKIS
Second Appellant
AND
JUAN CARLOS OLIVERO
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCHOOMBEE DCJ
Citation : OLIVERO -v- AILAKIS [2012] WADC 174
File No : CIV 3982 of 2010
(Page 2)
Catchwords:
Practice and procedure - Application for security for costs in an appeal - Purpose of an order for security - Relevance of O 25 r 1 of Rules of the Supreme Court 1971 (WA) - Whether it applies in an appeal
Legislation:
Rules of the Supreme Court 1971 (WA), O 25, r 1
Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)
Result:
Application granted
Category: A
Representation:
Counsel:
First Appellant : Mr S Penglis
Second Appellant : Mr S Penglis
Respondent : Mr T R Thies
Solicitors:
First Appellant : Herbert Smith Freehills
Second Appellant : Herbert Smith Freehills
Respondent : Timothy R Thies
Case(s) referred to in judgment(s):
Carol Farrell by her next friend Ronald Charles Waugh v Royal Kings Park Tennis Club (Incorporated) [2007] WASCA 173
Cowell v Taylor (1885) 31 Ch D 34
Harlock v Ashberry (1881) 19 Ch D 84
Mann v Dabelstein [2006] WASCA 176
Pearson v Naydler [1977] 1 WLR 899
Philips Electronics Australia Pty Ltd v Matthews [2002] NSWCA 157; (2002) 54 NSWLR 598
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60…
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- AILAKIS -v- OLIVERO [2013] WASCA 91
- Case
- [2013] WASCA 91
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CaseChat Overview and Summary
The case of Ailakis v Olivero involved an application for security for costs in an appeal brought by the appellant, Ailakis, against the respondent, Olivero. The dispute arose from an earlier decision in the Supreme Court of Western Australia, and the appellant sought an order for security for costs to cover the respondent's potential liability for the appellant's costs in the event the appeal was unsuccessful. The matter was heard in the Court of Appeal, which needed to determine whether such an order could be granted and if the relevant procedural rules applied to appeals.
The primary legal issue before the court was whether the rules governing the grant of security for costs in the Supreme Court of Western Australia also applied in the Court of Appeal. Specifically, the court had to interpret the scope of Order 25 Rule 1 of the Rules of the Supreme Court 1971 (WA). The appellant argued that the rule should apply in the Court of Appeal to prevent the respondent from being exposed to a significant financial burden if the appeal failed. The respondent contended that the rule did not apply to the Court of Appeal, and the court needed to determine the appropriate test for granting security for costs in the context of an appeal.
In delivering the judgment, the court held that the principles governing the grant of security for costs in the Supreme Court also applied in the Court of Appeal. The court emphasised that the purpose of such an order was to ensure that a party who might otherwise be exposed to substantial costs in a futile appeal could not unreasonably deter the other party from pursuing or defending the appeal. The court concluded that Order 25 Rule 1 was not limited to the Supreme Court and could be applied in the Court of Appeal. Therefore, the court granted the application for security for costs, allowing the appellant to proceed with the appeal while ensuring that the respondent was not unduly burdened by potential costs if the appeal was unsuccessful.
The primary legal issue before the court was whether the rules governing the grant of security for costs in the Supreme Court of Western Australia also applied in the Court of Appeal. Specifically, the court had to interpret the scope of Order 25 Rule 1 of the Rules of the Supreme Court 1971 (WA). The appellant argued that the rule should apply in the Court of Appeal to prevent the respondent from being exposed to a significant financial burden if the appeal failed. The respondent contended that the rule did not apply to the Court of Appeal, and the court needed to determine the appropriate test for granting security for costs in the context of an appeal.
In delivering the judgment, the court held that the principles governing the grant of security for costs in the Supreme Court also applied in the Court of Appeal. The court emphasised that the purpose of such an order was to ensure that a party who might otherwise be exposed to substantial costs in a futile appeal could not unreasonably deter the other party from pursuing or defending the appeal. The court concluded that Order 25 Rule 1 was not limited to the Supreme Court and could be applied in the Court of Appeal. Therefore, the court granted the application for security for costs, allowing the appellant to proceed with the appeal while ensuring that the respondent was not unduly burdened by potential costs if the appeal was unsuccessful.
Orders
Orders of the court
Application granted
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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