Stoltenberg v Bolton

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.