Aquatic Air Pty Ltd v Siewert

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.