Rado v Carrapetta

[2012] NSWCA 143

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rado v Carrapetta [2012] NSWCA 143

Hearing dates:

7 May 2012

Decision date:

07 May 2012

Before:

Tobias AJA

Decision:

(a) The appeal be expedited with liberty to the parties to approach the Registrar forthwith with a view to obtaining a date for hearing.

(b) The application for security for costs be dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - Appeal - Application for expedition unopposed - Contract - inability to raise totality of funds to complete purchase - security for costs.

Legislation Cited:

Uniform Civil Procedure Rules r 51.50(1)

Category:

Procedural and other rulings

Parties:

Margaret Ann RADO (applicant)
Frank Charles CARRAPETTA; Lucy Maree CARRAPETTA; Denise Amber CARRAPETTA (respondents)

Representation:

Counsel:
M Hadley (applicant)
R Parsons (respondents)
Solicitors:
Schweizer Kobras (applicant)
V L Macri Lawyers (respondents)

File Number(s):

2012/95244

 Decision under appeal 

Citation:

Margaret Ann Rado v Frank Charles Carrapetta & Ors

Date of Decision:

2012-02-27 00:00:00

Before:

Nicholas J

File Number(s):

2012/30874

Judgment

1. TOBIAS AJA: I now have before me a notice of motion filed on 19 April 2012 whereby the applicant seeks expedition of the respondents' appeal and an order that they provide security for the costs of that appeal. The application for expedition of the appeal is not opposed and, in light of the evidence filed in support of the application, should be granted.

1. On 27 February 2012 Nicholas J made a declaration that a contract entered into between the respondents as purchasers and the applicant as vendor had been validly terminated on 19 December 2011. The respondents have filed an appeal against the orders made by his Honour.

1. The history of the matter would seem to indicate that the problem faced by the respondents was that they were unable to raise the totality of the funds necessary to complete the purchase. However the evidence does indicate that they are not without assets.

1. The applicant also seeks security for costs upon the basis that the considerations that led to the litigation arose out of lack of funds on the part of the respondents, the purchasers, in that although they were able to raise a substantial part of the purchase price, there was a shortfall of $1.55 million which they could not raise by the time the date for completion arrived.

1. The correspondence attached to the affidavit of Norbert Joseph Schweizer affirmed 19 April 2012 indicates, as I have said, that the respondent purchasers do have considerable assets which they were attempting to liquidate but, as at the date of completion, apparently without success.

1. An application for security for costs in relation to an appeal is governed by the provisions of the UCPR r 51.50(1) which requires special circumstances to be established before an order for security will be made with respect to the costs of an appeal.

1. The onus being upon the applicant for security to establish special circumstances, no evidence has been filed or tendered by her to establish that the amount of the costs of the appeal (which are said to be some $40,000) would be unlikely to be paid in the event that an order was made dismissing the appeal and an order for costs made in favour of the present applicant.

1. As I do not consider that special circumstances have been established, it follows that I am not prepared to order security for costs. I am, as I have said, prepared to expedite the hearing of the appeal.

1. Accordingly, the formal orders I make are as follows:

(a) The appeal be expedited with liberty to the parties to approach the Registrar forthwith with a view to obtaining a date for hearing.

(b) The application for security for costs be dismissed with costs.

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Decision last updated: 16 May 2012