Marks-Isaacs v Fowler & Ors

The appeal concerned an application for security for costs brought by the respondents against the appellant. The primary dispute revolved around the appellant's financial position and whether it warranted an order for security to be provided for the respondents' costs. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the court was whether special circumstances existed to justify ordering the appellant to provide security for costs. This involved a determination of whether the appellant's financial position, as presented to the court, was sufficiently uncertain or precarious to warrant such an order, and whether the respondents had demonstrated a need for security to ensure their costs were covered.

Handley JA found that the appellant's financial position had not been fully disclosed, and that this lack of transparency, coupled with the potential for the appellant to be unable to meet the respondents' costs, constituted special circumstances justifying an order for security. The court applied the principles governing applications for security for costs, considering the appellant's ability to pay and the overall justice of the case.

The court ordered the appellant to provide security for one set of costs between the respondents in the amount of $15,000. This security was to be deposited in a joint interest-bearing account, with liberty to provide it through monthly instalments of not less than $1,000. The appellant was permitted to prosecute the appeal in the meantime, subject to these payments, but a hearing date would not be fixed until the full amount was deposited. The costs of the motions were to be costs in the appeal.