Mohareb v Harbour Radio Pty Ltd

Mohareb (the applicant) sought leave to appeal a decision of the primary judge concerning an application for security for costs made by Harbour Radio Pty Ltd and others (the respondents). The dispute arose from the respondents' application for security for costs under rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), which was granted by the primary judge. The applicant contended that the primary judge erred in exercising their discretion to order security for costs.

The central legal issues before the Court of Appeal were whether the primary judge erred in principle or fact in ordering security for costs against the applicant, and whether the Court of Appeal should grant leave to appeal that decision. This involved considering the applicant's financial position, including his bankruptcy, and the respondents' evidence regarding funds transferred by the applicant to an overseas bank account. The Court also had to assess the applicant's credibility and his history of non-compliance with court orders.

The Court of Appeal considered the principles governing applications for security for costs, particularly in circumstances where the applicant is bankrupt. It noted the general reluctance to make orders against a natural person, but emphasised that this is not an absolute bar. The Court found that the primary judge had ample evidence to conclude that the applicant was evasive and untruthful regarding the transferred funds, and that his history of non-payment of costs orders was a significant factor. The Court also considered the delay in the applicant seeking leave to appeal.

Consequently, the Court of Appeal refused the applicant's application for leave to appeal and ordered that the applicant pay the respondents' costs of the application.