Cheng v Lam - [2023] WASCA 65

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHENG -v- LAM [2023] WASCA 65
CORAM:   MURPHY JA
VAUGHAN JA

HEARD:   20 APRIL 2023
DELIVERED          :   20 APRIL 2023
PUBLISHED           :   26 APRIL 2023
FILE NO/S:   CACV 50 of 2022
BETWEEN:   MARY YUEN SHAN CHENG
Appellant
AND
FRANCIS HUNG LAM
ANDREA MAN YEE CHENG
Respondents

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: CHENG -v- LAM [No 8] [2022] WASC 122
File Number            :   CIV 1706 of 2015

Catchwords:

Practice and procedure - Appeal - Application for security for costs - Appeal against orders of primary judge in relation to taking of an account - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(a), r 32(4)(b)

Result:

Application allowed
Security for costs ordered

Category: B

Representation:

Counsel:

Appellant	:	G A Lacerenza
Respondents	:	P G McGowan

Solicitors:

Appellant	:	G.A Lacerenza & Associates
Respondents	:	Johnstone Crouse Lawyers

Case(s) referred to in decision(s):

Allmark v Mossensons (a firm) [2006] WASCA 127
Cheng v Lam [No 2] [2018] WASC 199
Cheng v Lam [No 2] [2021] WASCA 196
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175
Cheng v Lam [No 5] [2021] WASC 129
Cheng v Lam [No 7] [2021] WASC 417
Cheng v Lam [No 8] [2022] WASC 122
Cheng v Lam [No 9] [2022] WASC 252
Frigger v Kitay [2016] WASCA 173
George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56
Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45

REASONS OF THE COURT:

Introduction

On 20 April 2023 we heard an application by the first and second respondents filed 24 February 2023, for security for costs.
This appeal is against the orders of Tottle J, made on 15 December 2021, to adopt the amended report of an Independent Accounting Expert (IAE), Ms Suzanne Delbridge, in relation to the taking of an account in the primary proceedings. The reasons for that decision were published in Cheng v Lam [No 8].[1]
[1] Cheng v Lam [No 8] [2022] WASC 122 (primary decision).
On 20 April 2023, we ordered that the appellant provide security for costs of the appeal in an amount of $13,000. We said we would provide written reasons and these are our reasons.

Procedural history

The parties have been in litigation for a number of years. This is the third appeal brought before this court by the appellant.
The appellant, Mary Yuen Shan Cheng (Mary) is the former wife of Chan Thanh Lam (Chan) who was the second defendant by counterclaim in proceedings CIV 1706 of 2015 in the primary court. The first respondent, Francis Hung Lam (Frank) and the second respondent, Andrea Man Yee Cheng (Andrea) are husband and wife (together the respondents). Frank and Chan are brothers.[2]
[2] With no disrespect intended to the parties, these reasons, like the primary decision, will refer to the parties by their first names at times for ease of reference.
The primary decision is one of several decisions in the primary proceedings, CIV 1706 of 2015.[3] These decisions deal with the taking of accounts following the dissolution of the partnerships between the parties. The taking of accounts was the subject of orders made by Chaney J on 28 June 2018, pursuant to his Honour's reasons for judgment in Cheng v Lam [No 2]. Chaney J determined the terms of the partnership agreements in relation to each property development and the basis upon which account should be taken.[4] The partnership properties relevantly included properties at (1) 78 Edgecumbe Street, Como, which was subdivided to include 78C Edgecumbe Street, (2) 167 and 167A Lockhart Street, Como, and (3) 250 Ewen Street, Woodlands, which was subdivided to include 250C Ewen Street.
[3] Cheng v Lam [No 2] [2018] WASC 199; Cheng v Lam [No 3] [2020] WASC 45; Cheng v Lam [No 4] [2020] WASC 175; Cheng v Lam [No 5] [2021] WASC 129; Cheng v Lam [No 6] [2021] WASC 265; Cheng v Lam [No 7] [2021] WASC 417; Cheng v Lam [No 9] [2022] WASC 252.
[4] Cheng v Lam [No 2] [110].
A taking of accounts, in common form, in accordance with Chaney J's orders, was conducted by Registrar Whitbread. The registrar published a report on 19 February 2020: Cheng v Lam [No 3].
By orders made on 15 May 2020 (as amended on 27 May 2020), Tottle J adopted the registrar's report and made consequential directions for the appointment of an IAE to complete the process of taking the account: Cheng v Lam [No 4]. Mary appealed the decision to adopt the registrar's report. On 25 November 2021, this court refused leave to appeal and dismissed the appeal with costs.[5]
[5] Cheng v Lam [No 2] [2021] WASCA 196.
Ms Suzanne Delbridge was engaged as the IAE. She provided a report dated 2 February 2021, which was attached to her affidavit filed on 17 February 2021.
On 3 May 2021 Tottle J dismissed an application by Mary to stay or vary the orders made on 15 May 2020 (as amended on 27 May 2020): Cheng v Lam [No 5]. However, Tottle J gave Mary leave to engage her own IAE to identify any errors of Ms Delbridge's report, at her own cost.[6] Mary engaged Mr Michael Lee who produced a report which Tottle J later found, in Cheng v Lam [No 6], failed to comply with the order and amounted to a collateral attack both on the registrar's report and Tottle J's decision to adopt the report. His Honour found Mr Lee's evidence did not assist the court in progressing the matter to final determination.[7] On 3 May 2021, Tottle J also made orders approving Ms Suzanne Delbridge as the IAE and further ordered Mary to pay Frank and Andrea's costs on an indemnity basis.[8]
[6] Cheng v Lam [No 5] [46]. Orders of Tottle J (3 May 2021).
[7] Cheng v Lam [No 6] [9] - [10].
[8] Orders of Tottle J (3 May 2021).
On 13 October 2021, there was a hearing before Tottle J to determine four issues in connection with the completion of the taking of account. This was the subject of the decision in Cheng v Lam [No 7]. One issue related to a submission by Mary that Chaney J had made a finding that the partnership properties (except 167 and 167A Lockhart Street) had been the subject of in specie distributions to members of the former partnerships such that (1) they were no longer partnership properties and the recipients of them were entitled to retain them and should account for these in their capital accounts, and (2) the properties could not be subject of any orders for sale on the winding up of the partnerships.[9]
[9] Cheng v Lam [No 7] [25].
Tottle J held that Chaney J did not make a finding that there had been an in specie distribution of the partnership properties.[10] The unsold partnership properties included 78C Edgecumbe Street and 250C Ewen Street, each of which was registered in Mary's name, and 167 and 167A Lockhart Street, which was registered in the names of Mary and Chan (on the one hand) and Frank and Andrea (on the other) as tenants in common.
[10] Cheng v Lam [No 7] [26], [33]
Tottle J nevertheless accepted that certain adjustments were required to be made to calculations in the IAE report dated 2 February 2021, and on 26 November 2021, his Honour made orders for adjustments in relation to (1) the allowance in favour of the respondents for rental income in respect of 250C Ewen Street,[11] and (2) the net rental income for which Mary should account in respect of 78C Edgecumbe Street.[12] Mary's application was otherwise dismissed.[13]
[11] See Cheng v Lam [No 7] [13]. Orders of Tottle J (26 November 2021), order 1.
[12] Cheng v Lam [No 7] [24]. Orders of Tottle J (26 November 2021), order 1.
[13] Orders of Tottle J (26 November 2021), order 5.
Pursuant to the orders made on 26 November 2021, Ms Delbridge published an amended IAE report, attached to an affidavit filed and served on 6 December 2021. Tottle J said in the primary decision that this amended report recorded a net balance of $137,229 in favour of Mary and Chan before account was taken of funds held in an escrow account pursuant to orders of the Family Court. The funds in escrow were identified as an amount of $328,129.[14]
[14] Primary decision [3]; affidavit of Louise Marie Sales affirmed 6 December 2021, annexure C - items 494 ‑ 497 of Appendix C/9.
The amended IAE report gave rise to further disputes. Mary sought orders (by a revised minute of orders filed 14 December 2021) that the IAE be directed to make further adjustments to her report, or alternatively that the IAE prepare balance sheets and capital accounts for the eight partnerships.[15] The respondents sought orders (by a minute filed 8 December 2021) that Mary and Chan account for the value of unsold partnership properties they wished to keep in their names by making payment in respect of the value, alternatively that the properties be sold, and the proceeds of sale be dealt with in a manner as set out in their proposed orders. Frank and Andrea proposed they purchase the interest of Mary and Chan in certain properties.[16] These applications were the subject of the primary decision.
[15] Primary decision [4] - [5], appendix 1.
[16] Primary decision [6], appendix 2.

The primary decision

Tottle J found that the parties' proposed orders sought outcomes that were outside the scope of orders of Chaney J and the present proceedings, which only concerned the taking of accounts.[17] The parties were, in effect, trying to seek orders to achieve the winding up of the partnerships.[18] Tottle J held this was procedurally distinct from the taking of accounts which aims to determine the balancing figure to be paid by one party to another.[19] His Honour said that separate proceedings would be required to deal with the relief sought by the parties.[20]
[17] Primary decision [15] - [16].
[18] Primary decision [15].
[19] Primary decision [15].
[20] Primary decision [16].
In respect of Mary's proposed orders, his Honour repeated that the time for adjustment had passed, and that Mary's proposed adjustments constituted a collateral attack on the registrar's report.[21] His Honour found that the alternative order for the IAE to provide balance sheets and capital accounts was an attempt to revisit the issue already determined against Mary, namely that the taking of accounts did not require the preparation of conventional financial statements. This was not required by the orders for the taking of the accounts, nor did Mary ask for this in her writ or further amended statement of claim.[22] His Honour went on to say that 'the plaintiff advanced no cogent reason why the court should not adopt the IAE's report of 3 December 2021' and in order to progress this matter, it was appropriate to adopt the report.[23]
[21] Primary decision [17].
[22] Primary decision [18].
[23] Primary decision [19].
As to the respondents' proposed orders for the sale of unsold partnership properties or payment for their value by Mary and Chan, Tottle J also held that this was outside the scope of Chaney J's orders. His Honour found that Chaney J's orders only provided for one payment being made between the parties.[24] Further, his Honour found that those orders did not provide for the sale of any unsold partnership properties following the taking of account, and in any event the taking of account had not been completed.[25]
[24] Primary decision [20].
[25] Primary decision [24].
On 15 December 2021 Tottle J made the following orders, which were amended pursuant to O 21 r 10 of the Rules of the Supreme Court 1971 (WA) on 26 May 2022:[26]
1.The court will adopt the amended report of Ms Suzanne Delbridge dated 2 February 2021 as amended on 3 December 2021.
2.[Mary] will pay the [respondents'] costs of the hearings on 21 July 2021, 5 August 2021, 13 October 2021 and 26 November 2021 fixed in the sum of $5,034.00 and these costs are to be paid on or before 11 January 2021.
3.The costs of the hearing today be reserved.
[26] Orders of Tottle J (15 December 2021).

Appellant's case

Mary appeals order 1 of the above orders made on 15 December 2021 (as amended on 26 May 2022). The grounds are discursive, lacking in clarity and do not comply with the requirement in r 32(4)(a) and (b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules). The grounds, and particulars of them, are neither succinct nor are they in intelligible numbered paragraphs.
The grounds are as follows:
1.The Learned Judge erred in Law and/or in fact in finding that (19) The Plaintiff advanced no cogent reason why the Court should not adopt the IAE's report of 3 December, 2021. The Independent Accounting Expert (IAE) had undertaken the task that she was required to undertake._There was no further work for the IAE to do. In order to progress this matter it was appropriate to adopt the IAE's report of 3^rd December, 2021. His Honour (8) at the hearing 15^th December, 2021 having adopted the said Report of IAE (Ms Delbridge) of the 3^rd December, 2021 should have further directed the IAE to comply with all of the Registrar's Directions made in Her Report (Schedule A) of the 19^th February, 2020 and in particular
(i)Prepare the balance sheets for the 8 partnerships and the financials to be established retrospectively from the available documentation (p65 para166).
(ii)It will be for the accountant appointed by the Court to apply my findings to the First and Second Defendant's account. That will change the position within the accounts and come to a conclusion about the net assets and liability position as between the accounting parties (p137 para 553).
(iii)Alternatively directing the_IAE to comply and carry out Mary's Order 2 as set out in Appendix 1 of His Honours Reasons the 12th April, 2022
2[1]The Learned Judge erred in Law and/or in fact in (17) Paragraph 1 of the Plaintiff's minute proposed that the IAE be directed to make further adjustments to her report. As I have explained in earlier reasons the time for proposing adjustments to the IAE's report, of the nature proposed by the plaintiff, has passed. In reality the adjustments proposed by the Plaintiff constitute collateral attacks on Registrar Whitbreads Report, and/or refusing to or determining the claim as contended by Mary Yuen Shan Cheng being such 'surplus funds' of the partnership requiring additional calculations of an arithmetical or carry over nature should have been the subject of an Order by Tottle J so as to achieve the ultimate balance pursuant to Chaney J Orders 7 of the 28^th June, 2018.
In lieu thereof the Learned Judge should have Ordered
(i)The IAE to apply and carry over all partnership surplus funds as were due to Mary Yuen Shan Cheng and as appeared on the IAE final recast Report of the 2^nd February, 2021 as amended the 3^rd December, 2021 and more particularly pursuant to Mary's proposed order at Order 1(1) and 1(2) of Appendix 1 of His Honours Reasons at the 12^th April, 2022.
(ii)For the Accountant appointed to apply the Registrars Findings to enable the TOAL amount to be applied to capital contribution and profit distribution calculated (p106 para 36). (underling in original)
2[2]In the alternative His Honour should Order that the IAE apply the surplus funds available for distribution in the IAE recast to the benefit of Mary being:
(a)the surplus funds amount of $2,988,408.00;
(b)that Mary['s] … share of the surplus funds being $1,146,004.00 be added to item 497 of $465,358.00 so as to provide the increased total due to Mary … of $1,611,362.00;
(c)the Defendants to pay to Mary … an additional surplus sum of $1,146,004.00 within 21 days.
2[3]In the alternative, Tottle J should have Ordered in any event that as per Schedule B recast as prepared by the IAE Mary is to receive the following sums of money:
(a)the Plaintiff's ultimate balance of (item 497) $465,358.00 is the sum to be received by Mary;
(b)the sum of $328,129.00 (item 495) held in escrow Ordered by the Family Court Order of WA is to be paid to the Appellant, pursuant to paragraph (a) above;
(c)the balance of $137,229.00 (item 495) is to be paid by the Defendants to the Appellant, pursuant to paragraph (a) above.

The application for security

The application for security referred to a 'third respondent'. There are only two respondents on the record. Presumably, the references to the 'second and third respondents' are references to Frank and Andrea as the first and second respondents. The application was in the following terms:
1.Pursuant to Order 25 rule 1 of the Supreme Court Rules, within 14 days from the date of this order, the Appellant do give security for the Second and Third Respondents' costs of the action in the sum of $13,282.17 by payment of that amount into the Court.
2.The proceedings be stayed until such time as the Appellant has paid the sum of $13,282.17 into the Court, save for the Second and Third Respondents being at liberty to apply to have the action struck out should security as ordered by this Court not be paid by the Appellant.
3.The Second and Third Respondents have liberty to apply to this Court for further and additional security for the Respondents' costs at any time during this action.
4.The Appellant pay the Second and Third Respondents' costs of this application to be taxed (if not agreed).
Mr Johnstone, the respondents' solicitor, filed an affidavit in support of the application sworn 24 February 2023. Mr Johnstone, in his affidavit:
1.Annexed a draft bill of costs for the amount of $20,154.50, and indicated that the amount claimed for security was 66% of that figure, ie, $13,282.17.
2.Deposed that amounts totalling $394,175.50 in respect of taxed costs in favour of the respondents have not been paid in relation to the primary proceedings, an earlier appeal and related proceedings.
3.Deposed that a bankruptcy notice has been issued to Mary in respect of certain unpaid taxed costs.
4.Deposed that properties registered in Mary's name, comprising 78C Edgecumbe Street and 250C Ewen Street, and properties in which she has a registered interest as tenant in common at 167 and 167A Lockhart Street, are partnership properties which have been the subject of the taking of account.
5.Deposed that the properties referred to in the preceding point are the subject of caveats lodged by the Commonwealth Bank of Australia in relation to mortgages held over the properties and by the builder, Chemech Pty Ltd, in relation to the non‑payment of money under building contracts.
The respondents submitted, in effect, that security should be ordered on the bases that (1) the appeal has poor prospects of success, (2) Mary has consistently failed to pay taxed costs in the respondents' favour, (3) Mary does not have sufficient assets to satisfy a costs order if the appeal were unsuccessful, and (4) there is no evidence to conclude that an order for security would be oppressive, particularly given the relatively modest sum sought.
Mary swore an affidavit in opposition filed 24 March 2023. In her affidavit, Mary, in effect:
1.Stated that the creditor's petition in relation to the bankruptcy notice had been adjourned to 3 April 2023.
2.Deposed that her understanding was that 78C Edgecumbe Street, 250C Ewen Street, and 167 and 167A Lockhart Street are 'existing property assets which have not been taken into account in the Taking of Accounts'.
3.The properties at 78C Edgecumbe Street, 167 and 167A Lockhart Street, and 250C Ewen Street have not been sold.
4.The IAE 'Schedule B - Recast' indicates that the two Commonwealth Bank loans have been paid and discharged.
5.The IAE 'Schedule B - Recast' item states significant unallocated surplus proceeds of $2,988,408 which have been received by the respondents.
6.The IAE 'Schedule B - Recast' indicates that there are sale proceeds of $22,144,524 less $9,327,893, leaving $12,816,631 in residual proceeds in the control of the respondents. Her share of those receipts will 'far exceed' the amount of security claimed in this application.
7.She has retained the properties referred to in point 3 above in her name. The property at 250C Ewen Street is unencumbered. It has an estimated value of $800,000, but it is caveated by the respondents and she is unable to sell and/or borrow on the strength of that property until the appeal is resolved and the caveats removed. Similarly, her other properties cannot be sold unless and until partnership balance sheets are prepared and the partnership entitlements are finally calculated, pursuant to s 57 of the Partnership Act 1895 (WA), and distributed.
8.Unlike the respondents, she has retained the partnership properties transferred into her name, which are available for payment of partnership liabilities. By contrast, the respondents have sold most of their properties and 'received millions of dollars and not disgorged these funds back'.
9.The respondents have issued a property seizure and sale order in respect of one of the unpaid taxed bill of costs.

Mary filed written submissions in opposition to the application for security on 24 March 2023. In her written submissions, with respect to the prospects of success of the appeal, she submitted that 'the prima facie merits of the claim … have not been lost at first instance'. Mary referred to an exchange between Tottle J and counsel for the respondents at the hearing on 3 May 2021 regarding balance sheets and financial statements, and submitted that 'Counsel for the Respondents having consented is seeking to now move away from that position and seeking to move, and avoid the "second step" that the Registrar directed needed to be taken by the IAE'.
In her written submissions, Mary also submitted that there 'can be no issue that [Mary] has sufficient property available to satisfy any Order for costs against [Mary]'. Reference was made to her affidavit filed 24 March 2023.
In oral submissions, counsel for Mary submitted that it was not in dispute that a figure of $465,358 was owing to Mary, being (it appeared) the amount held in escrow in the Family Court, plus the amount of $137,229 referred to in [14] above. Counsel referred to a figure at item 497 to appendix C/9 to the IAE's report dated 3 December 2021.[27] Counsel for Mary also resisted the application on the bases that there has been a delay in bringing the application and that the delay was significant given that the appeal has now been listed for hearing on 21 August 2023.[28]
[27] ts 16 - 18; GB 54.
[28] ts 23.

The principles

The power to order security is exercised to serve the interests of justice. The discretion to order security is unfettered but must be exercised judicially. 'Special circumstances' do not have to be shown before an order for security for costs is made against an appellant. Ultimately, each case will turn on its own circumstances, and it is not possible to set out an exhaustive list of the relevant considerations.[29]
[29] George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56 [42] - [43], [48].
An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favour of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor. Impecuniosity is not in itself generally the sole ground for the making of an order for security. Even where the appellant is impecunious, in all the circumstances, the interests of justice may properly be served by not making such an order. Where security is ordered against an impecunious appellant, the amount ordered should not be greater than is absolutely necessary.[30]
[30] George 218 [46] ‑ [47].
Other relevant factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs.[31] Further, an appellant's non‑compliance with earlier costs orders in favour of the respondent, at least to the extent that the non‑compliance is not adequately explained, is also a relevant consideration.[32]
[31] George 218 [48].
[32] Frigger v Kitay [2016] WASCA 173 [51].

Disposition

In this case, in our view, it was in the interests of justice to grant the application for security. The following considerations seemed to us to be most relevant.
First, on a necessarily preliminary impression in this context, we could not with any confidence characterise the appeal as having reasonable prospects of success. The judge's decision was prima facie interlocutory, and leave to appeal has not been sought. Without leave, the appeal is incompetent.[33] Further, as noted earlier, the grounds of appeal do not comply with the Rules and lack clarity. Also, the appellant's submissions in the appellant's case appear discursive and lacking in clarity. As explained by counsel for Mary in oral submissions, Mary's principal complaint in the appeal is not that the IAE's amended report should not be adopted, but that his Honour should also have ordered other matters, which are the subject of ground 2.[34] On that basis, ground 1, which alleges error in adopting the IAE's amended report, is prima facie lacking in merit. As to the complaint that the judge ought to have ordered other matters, it is not clear why the absence of further orders at this point in time would constitute substantial injustice for the purposes of the grant of leave to appeal, particularly where the judge's decision is a decision concerning practice and procedure.[35]
[33] Allmark v Mossensons (a firm) [2006] WASCA 127 [24]; Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45 [44].
[34] ts 19 - 23.
[35] Sommerville [45] - [46].
Secondly, there is no suggestion that the appellant would be shut out from the appeal if security were ordered. That is all the more so given the limited amount sought by way of security for costs. Also, Mary deposed that her solicitor is acting pro bono. There can be no suggestion that the requirement to provide security for costs will prevent the appellant maintaining her legal representation for the prosecution of the appeal.
Thirdly, the evidence is that the appellant has consistently failed to pay costs orders against her in related litigation made in favour of the respondents. The amount involved is over $390,000. It is a fair inference that if the appellant fails in this appeal, she would likely not take steps to pay any costs ordered against her.
Fourthly, on the materials before this court, it appears that the appellant has no material assets apart from her share in the partnership assets. Insofar as the appellant appears to contend that if her appeal succeeded, she would be allocated partnership assets well in excess of the amount sought for security, that contention does not assist in considering whether any security should be ordered in the event that the appeal fails. Also, to the extent that the appellant contends that the properties at 78C Edgecumbe Street, 250C Ewen Street, and 167 and 167A Lockhart Street have not been taken into account in the process of the taking of an account, and/or that they had been distributed to her in specie, that proposition appears to be inconsistent with the judge's findings in Cheng [No 7],[36] against which there has been no appeal.
[36] Cheng [No 7] [25] - [33].
Fifthly, counsel for Mary's submission that there was no dispute that Mary was entitled to the sum of $465,358 cannot be accepted. The bulk of that amount is in relation to funds held in escrow in the Family Court. There is no evidence that there has been any order for the release of those funds to the appellant. As to the balance of $137,229, the judge has not made any orders for the payment of that sum to Mary. Whether such an order for payment will be made may depend upon the outcome of the strategic conference which the judge indicated would be listed 'to consider the steps that are required to finalise the accounts that can be the subject of directions'.[37] Further, for their part, the respondents contend that there can be no order for the payment of any money to Mary unless and until the remaining properties held in Mary's name are sold, given that the figure of $137,229 has been derived from, in effect, an assumed realisation of those properties. In any event the $137,229 is significantly less than the existing unpaid costs.
[37] Primary decision [33].
Sixthly, whilst the application was somewhat late, the amount sought in substance reflects the costs still to be incurred and we are not satisfied, for reasons already given, that the limited amount sought for security for costs would stultify the appeal.
Finally, the amount sought for security was reasonable in the circumstances, although for convenience we would round it down to $13,000, and we are not persuaded that there is any proper basis to provide for a liberty to apply to increase the amount of security during the course of the appeal.

Conclusion

For these reasons, we made the following orders:
1.On or before 4.00 pm on 5 May 2023, the appellant give security for the respondents' costs of the appeal in the sum of $13,000 by payment of that amount into court.
2.The appeal be stayed until such time as the appellant has paid the sum of $13,000 into court.
3.If the appellant does not comply with order 1, the respondents have leave to apply, on seven days' notice, to have the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IB
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
26 APRIL 2023