Stoltenberg v Bolton - [2019] NSWCA 71

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Stoltenberg v Bolton [2019] NSWCA 71
Hearing dates: 1 April 2019
Decision date: 15 April 2019
Before: Emmett AJA
Decision:
1. The appeal be stayed until such time as security for the respondent’s costs of the appeal in the sum of $20,000 is provided in a form satisfactory to the Registrar.
2. The respondent have leave to apply for dismissal of the appeal for want of despatch in the event that the security is not provided within 42 days.

Catchwords: Notice of Motion – Security for Costs – Special Circumstances – Impecuniosity – Stultification
Legislation Cited: Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Pi v Zhou [2016] NSWCA 148
Category: Procedural and other rulings
Parties: Stephen Robert Stoltenberg (Applicant)
Conrad Moran Bolton (Respondent)
Representation:
Counsel:
M Richardson (Applicant)
S T Chrysanthou with B C Dean (Respondent)
Solicitors:
Bell & Johnson Solicitors (Applicant)
Kalantzis Lawyers (Respondent)

File Number(s): 2018/334329
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2018] NSWSC 1518

Date of Decision:

15 October 2018

Before:

Payne JA

File Number(s):

2015/366431

Judgment

The appellant, Mr Stephen Stoltenberg, appeals from orders made on 15 October 2018 by Payne JA in proceedings brought in the Common Law Division by the respondent, Mr Conrad Bolton, against Mr Stoltenberg and Ms Ann Loder. Relevantly for present purposes, his Honour ordered Mr Stoltenberg to pay to Mr Bolton damages of $100,000 for defamation of Mr Bolton by Mr Stoltenberg. His Honour also made orders restraining Mr Stoltenberg from publishing or broadcasting various allegations about Mr Bolton. On 31 October 2018, Mr Stoltenberg served notice of intention to appeal from the orders made by Payne JA and filed his notice of appeal on 7 January 2019, although he did not serve it until 29 January 2019. Having regard to the quantum of damages, he is entitled to appeal as of right.
By notice of motion filed on 26 February 2019, Mr Bolton seeks an order under r 51.50 of the Uniform Civil Procedure Rules (UCPR) that Mr Stoltenberg provide security for Mr Bolton’s costs of the appeal. UCPR 51.50 specifically empowers the Court to order the provision of security for costs of an appeal, but only in special circumstances.
The damages and costs ordered by Payne JA against Mr Stoltenberg have not been paid to Mr Bolton and the evidence demonstrates that Mr Stoltenberg owns no property from which such orders might be satisfied. It would follow that Mr Stoltenberg owns no property from which an order for costs could be satisfied if the appeal were to be dismissed with costs.
While no order for security may be made in the absence of special circumstances, consideration of what may constitute special circumstances is not to be fettered by any general rule of practice. Further, impecuniosity, without more, will usually be insufficient. However, impecuniosity, coupled with an appeal that is shown…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stoltenberg v Bolton

Details

AGLC: Stoltenberg v Bolton [2019] NSWCA 71
Case: [2019] NSWCA 71
Decision Date: 15 April 2019

CaseChat Overview and Summary

In *Stoltenberg v Bolton*, the appellant, Stoltenberg, sought to appeal a decision of the primary court. The respondent, Bolton, applied for an order that Stoltenberg provide security for Bolton's costs of the appeal, arguing that special circumstances existed justifying such an order. The appeal was heard by Emmett AJA in the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue before the court was whether there were special circumstances that warranted ordering the appellant to provide security for the respondent's costs of the appeal. This involved considering the appellant's impecuniosity and whether it would lead to the stultification of the appeal, meaning the appeal would be rendered nugatory or ineffective if security were not ordered.

Emmett AJA reasoned that while impecuniosity alone is not sufficient to justify an order for security for costs, it can be a relevant factor when considered alongside other circumstances. His Honour found that the appellant's financial position, coupled with the nature of the appeal and the potential for the respondent to incur significant costs, constituted special circumstances. The court applied the principle that security for costs may be ordered where there is a real risk that a successful respondent will be unable to recover their costs, thereby preventing the respondent from effectively defending the appeal.

The court ordered that the appeal be stayed until the appellant provided security for the respondent's costs in the sum of $20,000, in a form satisfactory to the Registrar. Furthermore, the respondent was granted leave to apply for dismissal of the appeal for want of despatch should the security not be provided within 42 days.

Orders

Orders of the court

1. The appeal be stayed until such time as security for the respondent’s costs of the appeal in the sum of $20,000 is provided in a form satisfactory to the Registrar.

2. The respondent have leave to apply for dismissal of the appeal for want of despatch in the event that the security is not provided within 42 days.

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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Medium Neutral Citation:	Stoltenberg v Bolton [2019] NSWCA 71
Hearing dates:	1 April 2019
Decision date:	15 April 2019
Before:	Emmett AJA
Decision:	1. The appeal be stayed until such time as security for the respondent’s costs of the appeal in the sum of $20,000 is provided in a form satisfactory to the Registrar. 2. The respondent have leave to apply for dismissal of the appeal for want of despatch in the event that the security is not provided within 42 days.
Catchwords:	Notice of Motion – Security for Costs – Special Circumstances – Impecuniosity – Stultification
Legislation Cited:	Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Pi v Zhou [2016] NSWCA 148
Category:	Procedural and other rulings
Parties:	Stephen Robert Stoltenberg (Applicant) Conrad Moran Bolton (Respondent)
Representation:	Counsel: M Richardson (Applicant) S T Chrysanthou with B C Dean (Respondent) Solicitors: Bell & Johnson Solicitors (Applicant) Kalantzis Lawyers (Respondent)
File Number(s):	2018/334329
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2018] NSWSC 1518 Date of Decision: 15 October 2018 Before: Payne JA File Number(s): 2015/366431