Kimberley Developments Pty Ltd v Bale

[2024] NSWCA 12

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kimberley Developments Pty Ltd v Bale [2024] NSWCA 12

Hearing dates:

30 January 2024

Date of orders:

7 February 2024

Decision date:

07 February 2024

Before:

Simpson AJA

Decision:

The notice of motion is dismissed with costs

Catchwords:

COSTS – security for costs – application for security for costs pending appeal – UCPR r 51.50 – whether “special circumstances” exist – application dismissed – no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50

Cases Cited:

Bale v Kimberley Developments Pty Ltd (No 3) [2023] NSWSC 973

Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820

Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25

Category:

Procedural rulings

Parties:

Françoise Bale (Applicant on notice of motion)
Kimberley Developments Pty Ltd (Respondent on notice of motion)
Albert Darwiche (Respondent on notice of motion)

Representation:

Counsel:
J McEnaney (Applicant on notice of motion; respondent on appeal)
N Weinberger (Respondents on notice of motion; appellants on appeal)

Solicitors:
SCB Legal (Applicant on notice of motion)
Weinberger Lawyers (Respondents on notice of motion)

File Number(s):

2023/294430

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division

Citation:

[2023] NSWSC 973

Date of Decision:

18 August 2023

Before:

Leeming JA

File Number(s):

2018/237019

JUDGMENT

1. SIMPSON AJA: By Notice of Motion filed on 11 December 2023 Ms Françoise Bale, who is the respondent to an appeal to this Court which has been listed for hearing on 8 March 2024, seeks an order that the appellants provide security for her costs of the appeal. Ms Bale did not, in the Notice of Motion, quantify the amount of security she seeks.

2. The circumstances are somewhat unusual. It is necessary to provide more than usual detail of the background to the appeal for the potential costs of which Ms Bale now seeks security.

Background

3. Much of what follows is drawn from various judgments of this Court and the Supreme Court to which reference will be made.

4. Ms Bale is the only child of the late Michel Schein, and the executor of Mr Schein’s estate.

5. Prior to his death, and until 21 February 2011, Mr Schein was the proprietor of commercial real estate in Forest Lodge, NSW which was subject to a mortgage in favour of Suncorp-Metway Ltd (“Suncorp”). In August 2006 Mr Schein’s wife of 56 years (and the mother of Ms Bale) died. In 2007 Mr Schein made an enduring power of attorney in favour of Ms Bale, which he revoked in June 2008. In May 2008 Mr Schein remarried. His second wife, “Chyna” (sometimes “China”) Richardson took the surname Schein. In June 2008 Mr Schein made a power of attorney in favour of Ms Schein. Ms Bale unsuccessfully sought orders in the Civil & Administrative Tribunal of NSW relating to the revocation of the original power of attorney.

6. From time to time between 2006 and 2010 Mr Schein experienced difficulties in meeting his mortgage obligations and…