Etcell t/as Ikonic Homes v F & J Investment Assets Pty Ltd atf the Mustafa Property Trust

Etcell t/as Ikonic Homes sought an order for security for costs from F & J Investment Assets Pty Ltd on behalf of the Mustafa Property Trust in a case before the Supreme Court. The applicants argued they were impecunious and thus unable to pay the respondents' costs should the appeal be unsuccessful. The core legal issues before the court were whether there was an unacceptable risk of non-payment of costs, if ordering security would stultify the appeal, and the relevance of the number and nature of grounds of appeal to the prospects of success.

The court considered the principles established in Djordjevich v Rohrt and applied them to the present case. It found that an unacceptable risk of non-payment existed given the applicants' financial position. The court noted that the risk of stultification was a significant factor, but not the only one. It observed that a broad-brush approach to assessing prospects of success was appropriate, taking into account the number and nature of the grounds of appeal. Given the applicants' impecuniosity and the lack of strong prospects of success, the court concluded that ordering security for costs was necessary to protect the respondents from potential financial loss.

The court ultimately granted the order for security for costs, determining that the applicants must provide security in an amount fixed by the court. This decision emphasised the importance of protecting the respondents from financial risk while allowing the applicants to pursue their appeal without undue financial burden.