Starr-Diamond v Diamond

Case [2013] NSWCA 7

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Starr-Diamond v Diamond [2013] NSWCA 7
Hearing dates:28 November 2012
Decision date: 12 February 2013
Before: HOEBEN JA
Decision:

(1) Pursuant to rule 51.50 of the Uniform Civil Procedure Rules the appellant is to provide security for the costs of the appeal in the amount of $80,000.

(2) The appeal proceedings are to be stayed until such security is provided or until further order of the Court.

(3) The appellant is to pay the costs of this motion.

[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 - application for security for costs - whether special circumstances exist for grant of security - where hearing below was substantial in length - where appellant seeks to agitate the same legal and factual issues raised at first instance - where estimated costs of appeal will be significant - where appellant impecunious and applicant will have no prospect of enforcing a costs judgment in her favour against appellant - where appeal has little prospects of success.
Legislation Cited: Property (Relationships) Act 1984 - s 2
Cases Cited: Idoport Pty Ltd v National Australia Bank Ltd; Idoport Pty Ltd and Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Ltd "JMG" v National Australia Bank Ltd [2001] NSWSC 744
KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] 56 FCR 189
Lall v 53-55 Hall Street Pty Ltd (1978) 1 NSWLR 310
Levy v Bablis [2011] NSWCA 411
Preston v Harbour Pacific Underwriting Management Pty Limited [2007] NSWCA 247
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Starr-Diamond v Diamond [2012] NSWSC 675
Tait v Bindal People [2002] FCA 332
Weldon v Maples, Tyeesdale & Co (1887) 20 QBD 331
Yandil Holdings Pty Ltd v Insurance Co of North America [1985] 3 ACLC 542
Category:Costs
Parties: Simone Starr-Diamond - Appellant
Talus Diamond - First Respondent
Representation: Counsel:
Appellant appeared in person
Ms F Sinclair - First Respondent
Solicitors:
Appellant appeared in person
Stephen Hodges Solicitor - First Respondent
File Number(s):2012/216203
 Decision under appeal 
Citation:
Simone Starr-Diamond v Talus Diamond [2012] NSWSC 675
Date of Decision:
2012-06-19 00:00:00
Before:
Slattery J
File Number(s):
2008/278342

Judgment

  1. HOEBEN JA:

Nature of application

The first respondent relied upon an Amended Notice of Motion filed 16 October 2012. That motion sought the following orders:

"1. The appellant to provide security for the costs of the appeal in the amount of $150,000 or such other amount as the Court directs.
2. That the proceedings be stayed until such security is provided or until further order of…

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AGLC
Starr-Diamond v Diamond [2013] NSWCA 7
Case
[2013] NSWCA 7
Decision Date

CaseChat Overview and Summary

In *Starr-Diamond v Diamond*, the appellant sought to appeal a decision of the court below. The respondent applied for security for the costs of the appeal.

The central legal issue before the Court was whether special circumstances existed to warrant the grant of security for costs. This involved considering the substantial length of the hearing at first instance, the appellant's intention to raise the same legal and factual issues on appeal, the significant estimated costs of the appeal, the appellant's impecuniosity, and the perceived lack of prospects of success of the appeal.

Hoeben JA found that special circumstances did exist. His Honour noted that the appeal sought to agitate the same issues as the original hearing, the estimated costs of the appeal were significant, and the appellant was impecunious, meaning the respondent would likely be unable to enforce a costs order against her. Furthermore, the appeal was considered to have little prospect of success.

Consequently, the Court ordered that the appellant provide security for the costs of the appeal in the amount of $80,000. The appeal proceedings were stayed until this security was provided, and the appellant was ordered to pay the costs of the motion.

Orders

Orders of the court

(1) Pursuant to rule 51.50 of the Uniform Civil Procedure Rules the appellant is to provide security for the costs of the appeal in the amount of $80,000.

(2) The appeal proceedings are to be stayed until such security is provided or until further order of the Court.

(3) The appellant is to pay the costs of this motion.

[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.]

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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