Holgye v Dyluc Pty Limited

[2013] NSWCA 391

Court of Appeal

New South Wales

Case Title:

Holgye v Dyluc Pty Limited

Medium Neutral Citation:

[2013] NSWCA 391

Hearing Date(s):

11 November 2013

Decision Date:

11 November 2013

Before:

Emmett JA

Decision:

(1) The appellant is to provide security for the third respondent's costs of the Appeal by paying into Court the sum of $37,000 no later than 26 November 2013.
(2) The proceedings be stayed until such time as such security is provided.
(3) The proceedings be listed on 27 November 2013 for consequential orders or, in the event that security has not been provided, an order for dismissal of the proceedings under UCPR r 42.21(3).
(4) The parties have liberty to apply for additional security for costs at any stage of the proceedings.
(5) The appellant to pay the applicant's cost of Motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

SECURITY FOR COSTS - costs of appeal

Legislation Cited:

Environmental Planning and Assessment Act 1979
Supreme Court Act 1970, ss 101(2)(e), 101(5)
Uniform Civil Procedure Rules 2005, r 42.21(3)

Category:

Interlocutory applications

Parties:

Martin Egon Holgye (Appellant)
Dyluc Pty Limited (Third Respondent)

Representation

- Counsel:

No appearance for Appellant
A Horvath (Third Respondent)

- Solicitors:

DLA Phillips Fox (Appellant)
Slater & Gordon (Third respondent)

File Number(s):

CA 2013/165824

Decision Under Appeal

- Before:

Mahony SC DCJ

- Date of Decision: 

01 May 2013

- Citation:

[2013] NSWDC 57

- Court File Number(s):

10/241090

JUDGMENT

1. EMMETT JA: The appellant sued several parties in the District Court. On 1 May 2013, Mahony SC DCJ directed a verdict for the defendants and ordered the plaintiff, the present appellant, to pay the defendants' costs. The appellant has now appealed from those orders.

2. By notice of motion filed on 29 October 2013, the third respondent to the appeal sought security for the costs of the appeal. When the matter was called on before the Registrar earlier this morning, the solicitor for the appellant indicated that there were difficulties in obtaining instructions from the appellant, who is already in default as no submissions have been filed as required by the Rules. There was no appearance for the appellant after the Registrar referred the motion to me.

3. The appellant is the trustee of the Dyluc Family Trust (the Trust). The appellant itself has no funds. Its only asset would be an entitlement to be indemnified out of the funds of the Trust. The evidence on the motion indicates that such an indemnity would be of very little value. A balance sheet for the Trust as at 30 June 2011 indicates that there was a deficit of liabilities over assets in an amount over $275,000 at that time. The Trust had incurred losses in the three years up to 2011. There is no evidence as to the financial position at any time after 30 June 2011.

4. Correspondence with the appellants' solicitors has produced little information as to the appellant's capacity to meet an order for costs or of the appellant's intentions in prosecuting the appeal. Further, the evidence indicates that costs in excess of $50,000 are likely to be incurred by the present applicant in the appeal. The affidavit filed in support of the application contains some details as to how the costs are likely to be made up. In the absence of any appearance for the appellant, there is no reason to doubt the accuracy of the estimates. On the basis that, if the appeal is unsuccessful, the present applicant would recover something in the order of 70 per cent of total costs by way of party/party costs on the appeal, the applicant seeks security for the costs of the appeal in the sum of $37,000.

5. In all of the circumstances, I consider it is appropriate to make orders as follows:

   (1) The appellant provide security for the third respondent's costs by paying into Court the sum of $37,000.

   (2) The proceedings in the appeal be stayed until that order is complied with.

   (3) If the security is not provided by 26 November 2013, the appeal be dismissed.

   (4) The proceedings be listed on 27 November 2013 for the purpose of making consequential orders in the event that the security is not provided in accordance with the first order.

   (5) The appellant to pay the applicant's costs of the motion.

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