Elskaf v GIO General Limited - [2018] NSWCA 207

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elskaf v GIO General Limited [2018] NSWCA 207
Hearing dates: 17 September 2018
Date of orders: 17 September 2018
Decision date: 19 September 2018
Before: Sackville AJA
Decision:
1. Grant leave to the respondent to amend its notice of motion filed on 4 September 2018 to substitute “Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50” for “UCPR Rule 42.21”.
2.   Direct the respondent to file the amended notice of motion within seven days.
3.   Order the appellant to provide within fourteen days security in the sum of $15,000 for the respondent’s costs of the appeal by payment of that amount into Court or in such form as the appellant and respondent may agree.
4.   Stay the proceedings until the appellant has provided security for the respondent’s costs of the appeal in accordance with Order 3.
5.   The appellant pay the respondent’s costs of the amended motion for which leave to file has been granted.

Catchwords: PROCEDURE – application for security for costs – no point of principle
Legislation Cited: Criminal Assets Recovery Act 1990 (NSW)
Supreme Court Rules 1970 (NSW), Part 51, r 16
Cases Cited: Ali Elskaf v GIO General Ltd unrep, District Court, 13 April 2018
New South Wales Crime Commission v Elskaf [2018] NSWSC 259
New South Wales Crime Commissioner v Elskaf [2017] NSWSC 681
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Xenos v FAL Healthy Beverages Ltd [2017] NSWCA 240
Category: Procedural and other rulings
Parties: Ali Elskaf (Appellant)
GIO General Limited (Respondent)
Representation:
Counsel:
No appearance (Appellant)
Mr D Hanna (Respondent, applicant on motion)
Solicitors:
Ligeti Partners (Respondent, applicant on motion)

File Number(s): 2018/148552
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

13 April 2018

Before:

Wass SC DCJ

File Number(s):

2013/292649

Judgment

SACKVILLE AJA: In this matter the respondent to an appeal filed a motion seeking an order for security for its costs of the appeal. The appellant was served with GIO’s notice of motion and the supporting affidavits but did not appear at the hearing.
At the conclusion of the hearing I made the following orders:

1. Grant leave to the respondent to amend its notice of motion filed on 4 September 2018 to substitute “Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50” for “UCPR Rule 42.21”.

2. Direct the respondent to file the amended notice of motion within seven days.

3. Order the appellant to provide within fourteen days security in the sum of $15,000 for the respondent’s costs of the appeal by payment of that amount into Court or in such form as the appellant and respondent may agree.

4. Stay the proceedings until the appellant has provided security for the respondent’s costs of the appeal in accordance with Order 3.

5. The appellant pay the respondent’s costs of the amended motion for which leave to file has been granted.

I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCA 207
Decision Date: 19 September 2018

CaseChat Overview and Summary

In the matter of *Elskaf v GIO General Limited*, the appellant, Elskaf, sought to appeal a decision, and the respondent, GIO General Limited, applied for security for its costs of the appeal. The proceedings were before the Court of Appeal of New South Wales, with Sackville AJA presiding.

The central legal issue before the Court was whether to grant the respondent's application for security for costs of the appeal. This involved determining the appropriate rule under which the application should be made and the quantum of security to be ordered, given the circumstances of the appeal.

Sackville AJA reasoned that the respondent's application for security for costs was properly brought under rule 51.50 of the *Uniform Civil Procedure Rules 2005* (NSW), which governs security for costs in appeals. The Court granted leave to the respondent to amend its notice of motion to reflect this rule. In determining the quantum of security, the Court considered the likely costs of the appeal and ordered the appellant to provide security in the sum of $15,000. The Court also stayed the appeal proceedings until the security was provided and ordered the appellant to pay the respondent's costs of the motion.

Orders

Orders of the court

1. Grant leave to the respondent to amend its notice of motion filed on 4 September 2018 to substitute “Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50” for “UCPR Rule 42.21”.

2. Direct the respondent to file the amended notice of motion within seven days.

4. Stay the proceedings until the appellant has provided security for the respondent’s costs of the appeal in accordance with Order 3.

5. The appellant pay the respondent’s costs of the amended motion for which leave to file has been granted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Elskaf v GIO General Limited [2018] NSWCA 207
Hearing dates:	17 September 2018
Date of orders:	17 September 2018
Decision date:	19 September 2018
Before:	Sackville AJA
Decision:	1. Grant leave to the respondent to amend its notice of motion filed on 4 September 2018 to substitute “Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.50” for “UCPR Rule 42.21”. 2. Direct the respondent to file the amended notice of motion within seven days. 3. Order the appellant to provide within fourteen days security in the sum of $15,000 for the respondent’s costs of the appeal by payment of that amount into Court or in such form as the appellant and respondent may agree. 4. Stay the proceedings until the appellant has provided security for the respondent’s costs of the appeal in accordance with Order 3. 5. The appellant pay the respondent’s costs of the amended motion for which leave to file has been granted.
Catchwords:	PROCEDURE – application for security for costs – no point of principle
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW) Supreme Court Rules 1970 (NSW), Part 51, r 16
Cases Cited:	Ali Elskaf v GIO General Ltd unrep, District Court, 13 April 2018 New South Wales Crime Commission v Elskaf [2018] NSWSC 259 New South Wales Crime Commissioner v Elskaf [2017] NSWSC 681 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Xenos v FAL Healthy Beverages Ltd [2017] NSWCA 240
Category:	Procedural and other rulings
Parties:	Ali Elskaf (Appellant) GIO General Limited (Respondent)
Representation:	Counsel: No appearance (Appellant) Mr D Hanna (Respondent, applicant on motion) Solicitors: Ligeti Partners (Respondent, applicant on motion)
File Number(s):	2018/148552
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 13 April 2018 Before: Wass SC DCJ File Number(s): 2013/292649