Dunstan v Higham (No 3)

The proceedings concerned competing applications relating to security for costs paid into court by the appellant, Dunstan, in an appeal to the Court of Appeal against Higham. The appeal had been dismissed, and a costs order made against the appellant. The sum of $30,000 paid as security for costs remained in court. The appellant sought to have the security for costs order set aside, while the respondents applied to have the $30,000 applied towards the costs order made against the appellant.

The primary legal issues before Mossop J were whether there were any special circumstances to justify setting aside the security for costs order, and if not, whether the security held in court should be applied to satisfy the costs order made by the Court of Appeal in favour of the respondents. The court was also required to determine the appropriate amount to be fixed as payable pursuant to the Court of Appeal's costs order, given that the respondents' recoverable costs were significantly greater than the $30,000 held as security.

Mossop J reasoned that the appellant had not demonstrated any special circumstances warranting the setting aside of the security for costs order. Consequently, the court found it appropriate to fix the costs of the appeal and related proceedings at $30,000, and to order that the security held in court be paid out to the respondents to satisfy this amount. The court's decision was based on the principle that security for costs, once ordered and paid, should be applied to satisfy the ultimate costs order unless exceptional circumstances dictate otherwise.