Anderson v Canaccord Genuity Financial Ltd

This case concerned appeals by Daniela Anderson and Craig Anderson (the appellants) against orders made in the Equity Division. The respondents, including Canaccord Genuity Financial Ltd, sought security for costs and a stay of orders relating to the assessment of trial costs. The underlying dispute involved allegations of diversion of commercial opportunities and breaches of fiduciary duties by directors and officers, with claims of knowing assistance and vicarious liability against other corporations.

The primary legal issues before the court were whether special circumstances existed to warrant security for costs under the Uniform Civil Procedure Rules 2005 (NSW), and whether a stay of the costs assessment orders should be granted pending the determination of the appeals. The court also considered the respondents' arguments regarding the appellants' impecuniosity, overseas residence, the potential beneficiaries of the appeal, and the availability of litigation funding, as well as the circumstances of the appellants' legal representatives in relation to unpaid costs.

Basten AJA determined that the respondents had not established special circumstances justifying security for costs, noting that the length and complexity of the appeal, while significant, did not, in themselves, constitute special circumstances. The court also considered the respondents' estimates of likely costs and the appellants' financial position. Regarding the stay of costs assessment, the court found that the overriding principle of expeditious resolution of proceedings favoured allowing the appeals to proceed without the distraction of a costs assessment. The court ultimately granted a stay of the costs orders, conditional upon the appellants providing written undertakings not to dispose of their assets except in the ordinary course of business or for funding the appeal.

The court ordered that the stay of the costs orders made on 24 May 2022 would remain in effect until 21 days after the determination of the appeals, with the costs of the stay motion to be the appellants' costs in the appeal, payable by the first, second, third, and fifth respondents. The applications by the first to sixth respondents for security for costs were dismissed, with the costs of those motions also to be the appellants' costs in the appeal.