Cheng v Lam

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 appellant, Mary Yuen Shan Cheng (Mary), appeals the decision to adopt the IAE's amended report, arguing that the judge should have further directed the IAE to comply with the Registrar's directions and prepare balance sheets and capital accounts for the partnerships. The respondents, Frank and Andrea, have applied for security for costs, submitting that the appeal has poor prospects of success, Mary has consistently failed to pay costs in the respondents' favour, and she does not have sufficient assets to satisfy a costs order if the appeal were unsuccessful.

The court considered the principles of ordering security for costs, including the appellant's prospects of success, non-compliance with earlier costs orders, and the appellant's ability to satisfy a costs order if the appeal fails. In this case, the court found that it was in the interests of justice to grant the application for security. The appeal did not appear to have reasonable prospects of success, as the grounds of appeal lacked clarity and did not comply with the Rules. Furthermore, Mary had consistently failed to pay costs orders against her in related litigation, amounting to over $390,000. The amount sought for security for costs was reasonable and would not stultify the appeal.

The court 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.