Singer v Berghouse

The applicant, the executor of an estate, sought security for the costs of an appeal from the respondent, who was resident in New York. The respondent did not dispute her residency outside the Commonwealth or that her assets were located there. The applicant sought $12,500 in security for the costs of the appeal, supported by an affidavit detailing incurred costs and the respondent's substantial overseas assets.

The High Court was required to determine whether to grant the application for security for costs. This involved considering the respondent's non-residency and the quantum of the security sought, while also taking into account the nature of the case itself, particularly in circumstances where special leave to appeal had already been granted. The court had to balance the usual grounds for security for costs against factors that might militate against such an order, especially given the appellant's success in obtaining special leave.

The court acknowledged that the respondent's non-residency was a classic ground for security for costs. However, it also noted that the grant of special leave to appeal indicated the case possessed elements of general importance or raised questions concerning the administration of justice. The court considered that in such cases, even if the appellant were ultimately unsuccessful, there might be a possibility of costs being ordered out of the estate, or that the nature of the case itself might warrant a departure from the usual order for security. The court also observed that the respondent's significant overseas assets suggested she would not suffer undue hardship from an order for security, and that such security could be placed in an interest-bearing account in Australia.

The court ultimately ordered that security for costs be given in the sum of $12,500.