Bofinger v Kingsway Group Ltd

[2008] NSWCA 41

New South Wales

Court of Appeal

CITATION:	Bofinger v Kingsway Group Ltd [2008] NSWCA 41
HEARING DATE(S):	17 March 2008
JUDGMENT DATE:	17 March 2008
JUDGMENT OF:	Hodgson JA
EX TEMPORE JUDGMENT DATE:	17 March 2008
DECISION:	Grant the application for a stay on the basis of interest accruing on the costs orders in the meantime, and grant the application for security for costs. Costs of both notices of motion be costs in the proceedings.
CATCHWORDS:	PROCEDURE - Security for costs of an appeal - Appeal brought for benefit of creditors - Stay of costs orders - Provision for interest on costs.
CATEGORY:	Procedural and other rulings
PARTIES:	Ronald John BOFINGER (First Appellant)
FILE NUMBER(S):	CA 40909/07; 40782/07
COUNSEL:	G McVAY (Appellants) D SIBTAIN/ N McGARRITY (First and Eighth Respondents) Lady appeared (name not noted) (Second and Third Respondents) J HUBBARD (Fourth Respondent) D R PRITCHARD (Fifth, Sixth and Seventh Respondents)
SOLICITORS:	Warren McKeon Dickson (Appellants) Watson Mangioni Lawyers Pty Ltd (First and Eighth Respondents) McLachlan Chilton (Fourth Respondents) Middletons (Fifth, Sixth and Seventh Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 2451/06
LOWER COURT JUDICIAL OFFICER:	Young CJ in Eq
LOWER COURT DATE OF DECISION:	15 October 2007 and 15 November 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Bofinger v Rekley Pty Ltd [2007] NSWSC 1138

CA 40909/07
CA 40782/07

HODGSON JA

Monday 17 MARCH 2008

Ronald John BOFINGER and Anor v KINGSWAY GROUP LTD and Ors

Judgment

1 HIS HONOUR: I am dealing with two notices of motion. One is by the appellant seeking a stay of costs orders made by Justice Young at first instance. The other is by the fifth to seventh respondents seeking an order for security for costs which they have quantified in a sum of $12,815. I have been given detailed submissions and I have considered them. I do not propose to state in this judgment every detail that I have taken into consideration, but merely the factors that seem to me to be most significant.

2 It seems to me that there are reasonable grounds for the appeal, although I cannot say that the appeal is a particularly strong one. However, I think it appropriate to approach both notices of motion on the basis that there are reasonable grounds of appeal. Having regard to the financial position of the appellant, it does seem to me that realistically the appeal will be brought for the benefit of unsecured creditors rather than for the appellant personally. The result of an appeal proceeding will inevitably be the incurring of more costs by the fifth to seventh respondents which, having regard to the financial position of the first appellant, they will have little chance of recovering if the appeal is unsuccessful. It does seem to me that in those circumstances it is reasonable that the fifth to seventh respondents receive some protection against further loss by the provision of the relatively modest security for costs that they seek. It seems to me that, since the appeal is in substance brought for the benefit of unsecured creditors, those unsecured creditors, if they wish to have the benefit of the appeal, should be prepared to give security for costs to that fairly modest extent.

3 If that happens and the appeal is to proceed, then I think the balance of convenience would be in favour of a stay of the costs orders, subject to provision being made for interest on the costs orders accruing during the currency of the stay. If a stay is not ordered, there could be costs and inconvenience unnecessarily and wastefully incurred, and there would be an incentive on the respondents to incur those costs in circumstances where interest is not accruing on the costs orders.

4 Having taken into account the various considerations that have been advanced, I state those as the matters which influence me most in coming to the decision that I have, which in substance is to grant both applications: to grant the application for a stay on the basis of interest accruing on the costs orders in the meantime, and to grant the application for security for costs.

5 I have dealt with the matters as whole and each side has had some success. I think the appropriate order in relation to the costs of both notices of motion is that they be costs in the proceedings.

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