Nati v Bunt (No 2)

Case [2013] FCA 325

FEDERAL COURT OF AUSTRALIA

Nati v Bunt (No 2) [2013] FCA 325

Citation: Nati v Bunt (No 2) [2013] FCA 325
Appeal from: Bunt v Nati [2012] FCA 1089
Parties: ROBERT NATI and YING JIA DAI v GREGORY JOHN BUNT
File number: NSD 1690 of 2012
Judge: PERRAM J
Date of judgment: 11 April 2013
Catchwords: SECURITY FOR COSTS – Whether security for costs on appeal should be awarded – Prospects of success of appellants – Impecuniosity – Stifling of proceedings
Legislation: Bankruptcy Act 1966 (Cth) s 40(1)(g)
Federal Court of Australia Act 1976 (Cth) s 56(1)
Cases cited: Bunt v Nati [2012] FCA 1089
Dye v Commonwealth Securities Limited [2012] FCA 992
Nati v Bunt [2013] FCA 159
Date of hearing: 5 April 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 22
Counsel for the Appellants: Ms S Haddad
Solicitor for the Appellants: Shijing Zhang Lawyers
Counsel for the Respondent: Mr M Condon SC
Solicitor for the Respondent: Price & Company

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1690 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ROBERT NATI
First Appellant

YING JIA DAI
Second Appellant
AND:

GREGORY JOHN BUNT
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

11 APRIL 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 56(1) of the Federal Court of Australia Act 1976 (Cth) the appellants pay $20,000 for security for costs by way of bank guarantee or cash deposit within seven days.

2.If order 1 is not satisfied the appeal be stayed until further order.

3.The costs of the present application be borne by the appellants.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1690 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ROBERT NATI
First Appellant

YING JIA DAI
Second Appellant
AND:

GREGORY JOHN BUNT
Respondent

JUDGE:

PERRAM J

DATE:

11 APRIL 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 29 April 2013 a Full Court will hear Messrs Nati and Dai’s appeal from judgments given against them by Emmett J on 6 September 2012:  Bunt v Nati [2012] FCA 1089. The judgments were for $573,809.02. Messrs Nati and Dai filed their appeal on 31 October 2012. On 20 March 2013 Mr Bunt filed an amended interlocutory application seeking security for his costs of the appeal in the sum of $28,250 by way of bank guarantee or cash deposit.

  2. Section 56(1) of the Federal Court of Australia Act 1976 (Cth) authorises the Court or a Judge ‘to give security for the payment of costs which may be awarded against him or her’ and this power extends to appeals of the kind brought by Messrs Nati and Dai. In this case, Mr Bunt issued Messrs Nati and Dai with bankruptcy notices based upon the judgment given by Emmett J which were served on 17…

Continue reading Nati v Bunt (No 2)

Sign in free to access the full text

Details
AGLC
Nati v Bunt (No 2) [2013] FCA 325
Case
[2013] FCA 325
Decision Date

CaseChat Overview and Summary

The respondents in this case, Bunt, sought security for costs on appeal against the appellants, Nati. The respondents were successful in their initial application for security for costs in the Federal Circuit and Family Court of Australia, and the matter has now been appealed to the Full Court of the Federal Court of Australia. The appeal relates to the amount of the security for costs ordered and the condition attached to it. The Bunts were seeking an increase in the amount of the security for costs, as well as a condition that the security for costs be paid within seven days of the appeal being lodged.

The court was required to consider whether the appellants had a reasonable prospect of success on appeal, and if so, whether they were impecunious. The court also had to consider whether the Bunts' prospects of success were sufficiently strong to warrant an order for security for costs. The court considered the evidence presented by both parties, including the appellants' financial situation and the merits of their appeal. The court also considered the potential impact of the security for costs on the appellants' ability to pursue their appeal.

The court found that the appellants had a reasonable prospect of success on appeal, but that the Bunts' prospects of success were stronger. The court also found that the appellants were impecunious, and that the Bunts' prospects of success were sufficiently strong to warrant an order for security for costs. The court ordered that the appellants pay $20,000 for security for costs by way of bank guarantee or cash deposit within seven days. If the appellants did not comply with this order, the appeal would be stayed until further order. The costs of the present application were to be borne by the appellants.

The court's decision highlights the importance of considering the financial situation of the parties when determining whether to grant security for costs. The court also emphasised the need to balance the interests of both parties, and to ensure that the order for security for costs does not stifle the proceedings. The court's decision in this case provides guidance for future cases involving security for costs on appeal.

Orders

Orders of the court

1. Pursuant to s 56(1) of the Federal Court of Australia Act 1976 (Cth) the appellants pay $20,000 for security for costs by way of bank guarantee or cash deposit within seven days.

2. If order 1 is not satisfied the appeal be stayed until further order.

3. The costs of the present application be borne by the appellants.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.