Stone v Farrow Mortgage Services

[1999] NSWCA 114

CITATION:	Stone v Farrow Mortgage Services [1999] NSWCA 114
FILE NUMBER(S):	CA 40353/97
HEARING DATE(S):	16-04-99
JUDGMENT DATE:	16 April 1999
PARTIES :	Farrow Mortgage Services Pty Limited (in liquidation) - claimant/respondent George Barry Everett Stone - opponent/appellant
JUDGMENT OF:	Registrar Jupp

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	50019/94
LOWER COURT JUDICIAL OFFICER:	Bainton J

COUNSEL:	Mr White - claimant Mr Stone (litigant in person) - opponent
SOLICITORS:	Clayton Utz - claimant unrepresented - opponent
CATCHWORDS:	Security for Costs
DECISION:	motion dismissed; costs of motion to be appellant's costs in the appeal

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

REGISTRAR JUPP

FRIDAY 16 APRIL 1999

040353/97 - GEORGE STONE -v- FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION)

JUDGMENT

1. REGISTRAR: By notice of motion filed 19 March 1999, the respondent, Farrow Mortgage Services Pty Ltd (In Liquidation) has sought an order that the appellant provide security for costs of the appeal. The amount sought in the notice of motion is $23,500.

2. The proceedings are an appeal against a decision of Bainton J of 23 May 1997. He entered a judgment against the appellant in the sum of $1,765,853 and dismissed a cross-claim brought by Mr Stone seeking damages against the respondent.

3. A notice of appeal without appointment was filed on 18 June 1997. A notice of appeal with appointment was filed on 16 September 1997. Certain supplementary notices of appeal and addendums to the appeal have subsequently been filed.

4. A notice of motion for a stay of the judgment brought by Mr Stone was heard by Beazley JA on 23 February 1998. The application was refused. The decision of Beazley JA was upheld by a Full Court of the Court of Appeal constituted by Mason P, Sheller JA and Powell JA on 27 April 1998.

5. After the application by Mr Stone for a stay had been dismissed, the respondent pursued bankruptcy proceedings in the Federal Court. The most recent decision of the Federal Court is a decision of Emmett J of 13 July 1998. In that judgment Emmett J effectively stayed the bankruptcy proceedings pending the determination of this appeal.

6. The application for security for costs is brought pursuant to Part 51 rule 16 of the Supreme Court Rules. That rule states that, where a notice of appeal with appointment has been filed, the Court of Appeal may, in special circumstances order that security for costs be provided. Mr White, who has appeared on behalf of the claimant/respondent today, has pointed to three matters which he asserts establish special circumstances.

7. The first point that Mr White has argued is that the prospects of the appeal being successful are relatively low. In support of that assertion he has directed me to the decision of Beazley JA and the decision of the Full Court upholding Beazley' JA’s decision refusing the stay. Beazley JA in her judgment noted: “It is difficult to see therefore that the appeal has much prospect…