Nugawela v Dudley (Trustee)

FEDERAL COURT OF AUSTRALIA

Nugawela v Dudley (Trustee) [2023] FCA 1603

Appeal from:

Nugawela v Dudley (Trustee) (No 3) [2023] FCA 674

File number:

WAD 162 of 2023

Judgment of:

JACKSON J

Date of judgment:

14 December 2023

Catchwords:

PRACTICE AND PROCEDURE - application for security for costs - consideration of prospects of success of appeal - orders for security would not stultify reasonably arguable appeal - appellant's impecuniosity - history of appellant's non-compliance with procedural directions - security for costs of appeal ordered

Legislation:

Federal Court Rules 2011 (Cth) r 39.06, Schedule 3

Cases cited:

House v The King (1936) 55 CLR 499

Mathews v All Options Pty Ltd [2019] FCA 1972

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

34

Date of hearing:

14 December 2023

Counsel for the Appellant:

The appellant did not appear

Counsel for the Respondent:

Mr C Touyz

Solicitor for the Respondent:

Greenstone Legal

ORDERS

WAD 162 of 2023

BETWEEN:

PATRICK ALLEN NUGAWELA

Appellant

AND:

GREGORY BRUCE DUDLEY AS TRUSTEE FOR THE ESTATE OF PATRICK NUGAWELA

Respondent

ORDER MADE BY:	JACKSON J
DATE OF ORDER:	14 DECEMBER 2023

THE COURT ORDERS THAT:

1.The appellant must provide security for the costs of the appeal in the sum of $50,000 by payment of that sum into the Court.

2.The appeal is stayed until the security required by paragraph 1 of these orders is provided.

3.The appellant has liberty to apply in relation to the manner of providing the security for costs.

4.If the security for costs in accordance with these orders as varied is not provided by 19 February 2024, then the appeal is dismissed.

5.By 4.00 pm AWST on 19 December 2023, the respondent must file and serve a bill of costs for the security for costs application.

6.By 4.00 pm AWST on 25 January 2024, the appellant may provide a written submission of no longer than 3 pages in length in response to the respondent's bill of costs.

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

REASONS FOR JUDGMENT
(edited from the transcript)

JACKSON J:

1. On 20 June 2023 a judge of this Court dismissed an application made by Patrick Nugawela against his trustee in bankruptcy, Gregory Bruce Dudley.  The application was dismissed on the basis of long delay by Dr Nugawela in complying with procedural directions made by the primary judge.  During much of that delay, the proceeding had been stayed as a result of non‑compliance with procedural directions.  Dr Nugawela has appealed from the dismissal order.  The respondent, Mr Dudley, now seeks security for the costs of the appeal.

   The proceeding before the primary judge

2. The background of the matter need not be set out in detail.  Dr Nugawela's claim, as dismissed by the primary judge, concerned allegations that Mr Dudley should have assigned litigation against the Australian Taxation Office to him and should not have abandoned proceedings that Dr Nugawela…