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 2005Cases Cited: Pi v Zhou [2016] NSWCA 148 Category: Procedural and other rulings Parties: Stephen Robert Stoltenberg (Applicant)
Conrad Moran Bolton (Respondent)Representation: Counsel:
Solicitors:
M Richardson (Applicant)
S T Chrysanthou with B C Dean (Respondent)
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
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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.
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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.
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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.
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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…
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- AGLC
- Stoltenberg v Bolton [2019] NSWCA 71
- Case
- [2019] NSWCA 71
- Decision Date
CaseChat Overview and Summary
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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