Marks-Isaacs v Fowler & Ors

[2005] NSWCA 37

CITATION:	Marks-Isaacs v Fowler & Ors [2005] NSWCA 37
HEARING DATE(S):	31 January 2005
JUDGMENT DATE:	2 March 2005
JUDGMENT OF:	Handley JA
DECISION:	1. Order the appellant to provide security for one set of costs between the respondents in the amount of $15,000 to be deposited in a joint interest bearing account with a bank or building society in the names of the solicitor for the appellant and a solicitor for the respondents as agreed between them or as nominated by the Registrar, with liberty to provide such security by monthly deposits of not less than $1,000, the first such deposit to be made on or before 31 March 2005.; 2. The appellant is to be at liberty to prosecute the appeal in the meantime subject to such payments being made but a hearing date for the appeal is not to be fixed until the full $15,000 has been deposited.; 3. Costs of both motions costs in the appeal.; 4. Liberty to apply.

CATCHWORDS:	APPEAL - security for costs - special circumstances - appellant's financial position not fully disclosed - security ordered - one set of costs between respondents
LEGISLATION CITED:	Supreme Court Rules 1970 Pt 51 r 16(1)
CASES CITED:	Insurance Commissioner v Joyce (1948) 77 CLR 39 Permanent Trustee Co of NSW Ltd v Hinks (1934) 34 SR (NSW) 130 Porter v Gordian Runoff Ltd [2004] NSWCA 171 Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143
PARTIES:	Simon Edwards Marks-Isaacs (Appellant) Stuart Grant Fowler & Ors trading as Gadens Ridgeway (First Respondent) James Robert Dupree (Second Respondent)
FILE NUMBER(S):	CA 41014/04
COUNSEL:	R F Margo SC/A Blank (Appellant) D Cassperson (First Respondent) G Craddock (Second Respondent)
SOLICITORS:	K M Harkness & Co (Appellant) Dibbs Barker Gosling (First Respondent) McCabe Terrill (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9648/00
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ

CA 41014/04

HANDLEY JA

2 MARCH 2005

SIMON EDWARDS MARKS-ISAACS v STUART GRANT FOWLER & ORS

CATCHWORDS

APPEAL – security for costs – special circumstances – appellant’s financial position not fully disclosed – security ordered – one set of costs between respondents

FACTS

The appellant sued the respondents in the District Court for professional negligence in acting for him in property settlement proceedings in the Family Court. His claim was dismissed and he appealed as of right. The respondents filed notices of motion seeking orders for security for costs.

The respondents’ costs of the trial were estimated at $365,000, and their costs of the appeal at $30,000 each. The evidence of the appellant’s financial position, given by his solicitor on information and belief, showed that he had no capital assets but had a substantial income.

SCR Pt 51 r 16(1) provides that “the Court of Appeal may, in special circumstances, order that such security as the Court of Appeal thinks fit be given for the costs of the appeal”. The evidence of the appellant’s financial position was incomplete and the Court inferred that his…