Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Salmon v Albarran (No 2) [2024] NSWCA 99 Hearing dates: 06 May 2024 Date of orders: 09 May 2024 Decision date: 09 May 2024 Before: Stern JA Decision: (1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.50(1) by 4 pm on 20 June 2024 the appellants are to provide security:
(a) in the sum of $35,000 for the first, second and fourth to eighth respondents’ costs of the appeal; and
(b) in the sum of $15,000 for the third respondent’s costs of the appeal
either by payment of those amounts into Court or in such other form as the respective respondents may agree in writing before that time expires.
(2) These proceedings are stayed until the appellants have provided security in accordance with Order 1.
(3) The applications by the respondents for orders that the appeals should be dismissed pursuant to UCPR, r 51.50(2A) if security has not been provided in accordance with Order 1 are adjourned.
(4) The proceedings are listed for directions before the Registrar on the first available date after 20 June 2024 at which time, if security has not been provided in accordance with Order 1, directions should be made for a hearing before Stern JA to hear the adjourned applications for orders dismissing the appeals.
(5) The appellants are to pay the first, second and fourth to eighth respondents' costs of the motion for security for costs dated 20 February 2024.
(6) The appellants are to pay the third respondent’s costs of the motion for security for costs dated 14 March 2024.
(7) Orders 1 and 2 made by Nixon J on 3 November 2023 are stayed save that this order does not preclude steps being made for the costs the subject of those orders to be assessed or agreed.
(8) There shall be no order for costs on the appellants’ motions filed 12 March 2024 and 26 March 2024.
Catchwords: COSTS – security for costs – pending appeal – whether special circumstances – impecuniosity – where respondents incurred significant costs in first instance proceedings – where respondents unlikely to recover costs on appeal – appellants’ lack of candour – security ordered
Legislation Cited: Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Cases Cited: Aquatic Air Pty Ltd v Siewert [2016] NSWCA 130
Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Dye v Commonwealth Securities Limited [2012] FCA 992
Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hannaford v Commonwealth Bank of Australia [2013] NSWCA 472
Khattar v Khattar [2022] NSWCA 189
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Macedonian Orthodox Community Church St Petka Incorporated v Petar [2012] NSWCA…
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- AGLC
- Salmon v Albarran (No 2) [2024] NSWCA 99
- Case
- [2024] NSWCA 99
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether to order the appellants to provide security for the respondents' costs of the appeal, and if so, in what amount. This required the court to assess whether the circumstances of the case met the threshold for ordering security, particularly in light of the respondents' financial concerns regarding potential cost recovery and the appellants' conduct.
Stern JA applied the principles governing applications for security for costs, considering the relevant Uniform Civil Procedure Rules (NSW). The court found that special circumstances were established, justifying the imposition of security. This conclusion was based on the evidence presented regarding the appellants' impecuniosity and a perceived lack of candour, which together created a real risk that the respondents would be unable to recover their costs of the appeal if the appellants were unsuccessful.
The court ordered the appellants to provide security for the first, second, and fourth to eighth respondents' costs of the appeal in the sum of $35,000, and for the third respondent's costs in the sum of $15,000, by a specified date. The proceedings were stayed until security was provided. The respondents' applications to dismiss the appeals for failure to provide security were adjourned, with directions for a further hearing if security was not furnished. The appellants were ordered to pay the respondents' costs of the security for costs motion.
Orders
Orders of the court
(1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 51.50(1) by 4 pm on 20 June 2024 the appellants are to provide security:
(a) in the sum of $35,000 for the first, second and fourth to eighth respondents’ costs of the appeal; and
(b) in the sum of $15,000 for the third respondent’s costs of the appeal
either by payment of those amounts into Court or in such other form as the respective respondents may agree in writing before that time expires.
(2) These proceedings are stayed until the appellants have provided security in accordance with Order 1.
(3) The applications by the respondents for orders that the appeals should be dismissed pursuant to UCPR, r 51.50(2A) if security has not been provided in accordance with Order 1 are adjourned.
(4) The proceedings are listed for directions before the Registrar on the first available date after 20 June 2024 at which time, if security has not been provided in accordance with Order 1, directions should be made for a hearing before Stern JA to hear the adjourned applications for orders dismissing the appeals.
(5) The appellants are to pay the first, second and fourth to eighth respondents' costs of the motion for security for costs dated 20 February 2024.
(6) The appellants are to pay the third respondent’s costs of the motion for security for costs dated 14 March 2024.
(7) Orders 1 and 2 made by Nixon J on 3 November 2023 are stayed save that this order does not preclude steps being made for the costs the subject of those orders to be assessed or agreed.
(8) There shall be no order for costs on the appellants’ motions filed 12 March 2024 and 26 March 2024.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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