Brown v King

[2022] NSWCA 75

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Brown v King [2022] NSWCA 75

Hearing dates:

9 May 2022

Date of orders:

20 May 2022

Decision date:

20 May 2022

Before:

Kirk JA

Decision:

The respondent’s application for security for costs made by notice of motion filed on 14 March 2022 is dismissed with costs.

Catchwords:

COSTS — Security for costs — relevant factors — deficiency of appeal — where applicant for security for costs concedes irregularity in orders of court below

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Supreme Court Act 1970 (NSW), s 75A

Cases Cited:

Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434

Boros v Pages Property Investments Pty Ltd [2021] NSWCA 50

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

King v Brown (No2) [2021] NSWSC 1060

King v Brown (No3) [2021] NSWSC 1116

Lall v 53–55 Hall Street Pty Ltd [1978] 1 NSWLR 310

Mbuzi v Hall [2010] QSC 359

Norris v Routley [2016] NSWCA 367

P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36

Porter v Gordian Runoff Ltd [2004] NSWCA 171

Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247

Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127

Starr-Diamond v Diamond [2013] NSWCA 7

Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136

Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240

Zakka v Elias t/as Cadmus Lawyers [2012] NSWCA 277

Category:

Procedural rulings

Parties:

Stanley King (Respondent/Applicant on the motion)
Geoffrey Brown (First Appellant/First Respondent on the motion)
Barbara Brown (Second Appellant/Second Respondent on the motion)

Representation:

Counsel:
P Newton SC with M Hazan (Respondent/Applicant on the motion)

Geoffrey Brown in person
Barbara Brown in person

Solicitors:
Anne McDonald Lawyers (Respondent/Applicant)

File Number(s):

2021/00340527

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

King v Brown (No.2) [2021] NSWSC 1060

Date of Decision:

24 August 2021

Before:

Schmidt AJ

File Number(s):

2020/94610

Judgment

1. By notice of motion filed on 14 March 2022 the respondent in this appeal, Mr King, seeks an order that the appellants provide security for costs, pursuant to r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. The proceedings below were brought by the respondent against three defendants, Mr and Mrs Brown and Riverpines Vineyard Pty Ltd, a company associated with the Browns. The respondent sought to recover monies owed principally under a deed of loan and mortgage under which he had lent money to the defendants in connection with their operation of a vineyard and wine business in the Hunter Valley.

3. The respondent succeeded, and, by orders made by Schmidt AJ on 2 September 2021, each of Mr and Mrs Brown was ordered to pay some $2.1 million in Canadian dollars (being the currency of the loan), along with some A$1.55 million…