Aquatic Air Pty Ltd v Siewert - [2016] NSWCA 130

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aquatic Air Pty Ltd v Siewert [2016] NSWCA 130
Hearing dates: 23 May 2016
Date of orders: 30 May 2016
Decision date: 30 May 2016
Before: Macfarlan JA
Decision:
(1) Order pursuant to s 1335 of the Corporations Act 2001 (Cth) that Aquatic provide security for Mr and Mrs Siewert’s costs of the appeal in the amount of $80,000.
(2) Order the security to be provided by Aquatic paying the amount of it into Court or in such other manner as the Court orders or the parties agree.
(3) Order that if the security is not provided within 14 days of the making of order (1), Aquatic’s appeal be stayed and any order staying enforcement of any judgment entered at first instance be dissolved.
(4) Note that Mr and Mrs Siewert have agreed not to pursue their cross-appeal in the event that Aquatic’s appeal is stayed pursuant to order (3).
(5) In the event that Aquatic’s appeal is stayed pursuant to order (3) above, order that Aquatic pay the costs of Mr and Mrs Siewert of the appeal and cross-appeal.
(6) Order Aquatic to pay Mr and Mrs Siewert’s costs of this notice of motion.

Catchwords: APPEAL – security for costs application – whether appellant impecunious – whether appeal would be stifled if security order made – whether undertaking by sole director should be accepted
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: Singer v Berghouse [1993] HCA 35; 67 ALJR 708
Category: Procedural and other rulings
Parties: Aquatic Air Pty Ltd (Applicant)
Dieter Siewert (First Respondent)
Lieselotte Siewert (Second Respondent)
Representation:
Counsel:
Mr DKL Raphael (Applicant)
Mr B De Buse (Respondents)
Solicitors:
A T Lawyers Pty Ltd (Applicant)
Marsdens Law Group (Respondents)

File Number(s): CA 2016/53050
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

Aquatic Air Pty Limited v Siewert & Anor [2015] NSWSC 928 – 27 July 2015
Aquatic Air Pty Limited v Siewert (No 2) [2016] NSWSC 10 – 2 February 2016

Date of Decision:

27 July 2015 and 2 February 2016

Before:

Brereton J

File Number(s):

SC 2012/169096

Judgment

HIS HONOUR: By notice of motion dated 3 May 2016 Mr Dieter Siewert and Mrs Lieselotte Siewert, who are respondents to the appeal, sought an order that the appellant, Aquatic Air Pty Ltd (“Aquatic”), provide security for their costs of the appeal from judgments of Brereton J sitting in the Corporations List of the Equity Division dated 27 July 2015 and 2 February 2016 ([2015] NSWSC 928 and [2016] NSWSC 10) respectively. The full circumstances of the dispute between the parties are set out in his Honour’s judgments. For present purposes, it is sufficient to say that by two share sale agreements and a security agreement, Mr and Mrs Siewert sold their shares in certain companies conducting aviation operations to companies controlled by Mr Ross Seller, an experienced tax lawyer with an interest in aviation. The latter companies purportedly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCA 130
Decision Date: 30 May 2016

CaseChat Overview and Summary

Aquatic Air Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge. Mr and Mrs Siewert, the respondents, sought security for their costs of the appeal. The central issue was whether Aquatic Air Pty Ltd, the appellant, was impecunious to such an extent that the appeal would be stifled if an order for security for costs was made.

The Court was required to determine whether to grant the application for security for costs, and if so, in what amount and on what terms. This involved considering the financial position of the appellant and the potential impact of a security order on its ability to pursue the appeal. The Court also had to consider whether an undertaking provided by the sole director of the appellant company was sufficient to satisfy any potential order for security.

Macfarlan JA found that the appellant was impecunious and that the appeal would likely be stifled if security for costs was not ordered. The Court ordered that Aquatic Air Pty Ltd provide security for the respondents' costs of the appeal in the amount of $80,000, to be paid into court or otherwise as agreed or ordered. The Court further ordered that if the security was not provided within 14 days, the appeal would be stayed, and any stay on the enforcement of the first instance judgment would be dissolved. The respondents agreed not to pursue their cross-appeal if the appellant's appeal was stayed. Consequently, if the appeal was stayed, Aquatic Air Pty Ltd was ordered to pay the costs of both the appeal and the cross-appeal, as well as the costs of the notice of motion.

Orders

Orders of the court

(1) Order pursuant to s 1335 of the Corporations Act 2001 (Cth) that Aquatic provide security for Mr and Mrs Siewert’s costs of the appeal in the amount of $80,000.

(2) Order the security to be provided by Aquatic paying the amount of it into Court or in such other manner as the Court orders or the parties agree.

(3) Order that if the security is not provided within 14 days of the making of order (1), Aquatic’s appeal be stayed and any order staying enforcement of any judgment entered at first instance be dissolved.

(4) Note that Mr and Mrs Siewert have agreed not to pursue their cross-appeal in the event that Aquatic’s appeal is stayed pursuant to order (3).

(5) In the event that Aquatic’s appeal is stayed pursuant to order (3) above, order that Aquatic pay the costs of Mr and Mrs Siewert of the appeal and cross-appeal.

(6) Order Aquatic to pay Mr and Mrs Siewert’s costs of this notice of motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Aquatic Air Pty Ltd v Siewert [2016] NSWCA 130
Hearing dates:	23 May 2016
Date of orders:	30 May 2016
Decision date:	30 May 2016
Before:	Macfarlan JA
Decision:	(1) Order pursuant to s 1335 of the Corporations Act 2001 (Cth) that Aquatic provide security for Mr and Mrs Siewert’s costs of the appeal in the amount of $80,000. (2) Order the security to be provided by Aquatic paying the amount of it into Court or in such other manner as the Court orders or the parties agree. (3) Order that if the security is not provided within 14 days of the making of order (1), Aquatic’s appeal be stayed and any order staying enforcement of any judgment entered at first instance be dissolved. (4) Note that Mr and Mrs Siewert have agreed not to pursue their cross-appeal in the event that Aquatic’s appeal is stayed pursuant to order (3). (5) In the event that Aquatic’s appeal is stayed pursuant to order (3) above, order that Aquatic pay the costs of Mr and Mrs Siewert of the appeal and cross-appeal. (6) Order Aquatic to pay Mr and Mrs Siewert’s costs of this notice of motion.
Catchwords:	APPEAL – security for costs application – whether appellant impecunious – whether appeal would be stifled if security order made – whether undertaking by sole director should be accepted
Legislation Cited:	Corporations Act 2001 (Cth)
Cases Cited:	Singer v Berghouse [1993] HCA 35; 67 ALJR 708
Category:	Procedural and other rulings
Parties:	Aquatic Air Pty Ltd (Applicant) Dieter Siewert (First Respondent) Lieselotte Siewert (Second Respondent)
Representation:	Counsel: Mr DKL Raphael (Applicant) Mr B De Buse (Respondents) Solicitors: A T Lawyers Pty Ltd (Applicant) Marsdens Law Group (Respondents)
File Number(s):	CA 2016/53050
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: Aquatic Air Pty Limited v Siewert & Anor [2015] NSWSC 928 – 27 July 2015 Aquatic Air Pty Limited v Siewert (No 2) [2016] NSWSC 10 – 2 February 2016 Date of Decision: 27 July 2015 and 2 February 2016 Before: Brereton J File Number(s): SC 2012/169096