Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Swift v McLeary [2013] NSWCA 173 Hearing dates: 27 May 2013 Decision date: 14 June 2013 Before: Gleeson JA Decision: (1) The appellant provide within 14 days security in the sum of $40,000 for the respondent's costs of the appeal by payment into court.
(2) The appeal be stayed until such security is provided.
(3) The Court notes the consent given by the respondent to the appellant, pursuant to order 2(b) made by Young AJ on 11 March 2013 in proceedings numbered 2011/69385, to:
(a) the disposition of property by the appellant insofar as that disposition is by way of payment into court of the security, the subject of order 1 above; and
(b) the disposition by a bona fide arms-length sale of any of the items of property of the appellant identified in paragraphs [4] to [8] of the appellant's affidavit sworn 11 February 2013 in such proceedings, if required to meet the payment into court of the security, the subject of order 1 above.
(4) The appellant to pay the respondent's costs of the 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: PROCEDURE - costs - security for costs -- where appellant has unexplained dissipation of assets - impecuniosity - whether special circumstances shown Legislation Cited: Corporations Act 2001
Uniform Civil Procedure RulesCases Cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Green v CGU Insurance Ltd [2008] NSWCA 148; 67 ACSR 105
Hastings v Hastings [2009] NSWCA 294
Jeffrey and Katauskas Pty Ltd v SST Consultation Pty Ltd [2009] HCA 43; 239 CLR 75
J M Properties Pty Ltd v Strata Corporation No 13975 Inc [2006] SASC 227
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Levy v Bablis [2011] NSWCA 411
Marks-Isaacs v Fowler [2005] NSWCA 37
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
P S Chellaram & Co Ltd v China Ocean Shipping [1991] HCA 36; 102 ALR 321
Raptis v Wija Investments Development Pty Ltd [2007] NSWSC 870
Shannon v Australia and New Zealand Banking Group Ltd (No 2) [1994] 2 Qd R 563
Varley v Varley [2006] NSWSC 1025
Vista Capital Developments Pty Ltd v Duncombe [2010] FMCA 793; 245 FLR 389Texts Cited: Young, Croft, Smith, On Equity (Lawbook Co, 2009) Category: Interlocutory applications Parties: Martin Swift (Appellant)
Jeffrey John McLeary (Respondent)Representation: Counsel:
J Johnson (Appellant)
B Bradley (Respondent)
Solicitors:
Beazley Singleton Lawyers (Appellant)
Shotters Lawyers (Respondent)
File Number(s): 2012/384187 Publication restriction: No Decision under appeal
- Jurisdiction:
- 9111
- Citation:
- McLeary…
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- AGLC
- Swift v McLeary [2013] NSWCA 173
- Case
- [2013] NSWCA 173
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether there were special circumstances justifying an order for security for costs against the appellant, particularly in light of an unexplained dissipation of assets and the appellant's impecuniosity. The Court had to consider the principles governing the exercise of discretion to order security for costs in an appeal context.
Gleeson JA reasoned that the unexplained dissipation of assets by the appellant, coupled with their impecuniosity, constituted special circumstances warranting an order for security for costs. The Court applied the principle that while impecuniosity alone is not sufficient, a demonstrated inability to pay costs, especially when linked to a dissipation of assets, can justify such an order to ensure the respondent is not left without recourse for their costs.
The Court ordered that the appellant provide security for the respondent's costs of the appeal in the sum of $40,000 within 14 days by payment into court. The appeal was stayed until this security was provided. The Court also noted consent regarding the disposition of certain property by the appellant to meet this security requirement and ordered the appellant to pay the respondent's costs of the motion.
Orders
Orders of the court
(1) The appellant provide within 14 days security in the sum of $40,000 for the respondent's costs of the appeal by payment into court.
(2) The appeal be stayed until such security is provided.
(3) The Court notes the consent given by the respondent to the appellant, pursuant to order 2(b) made by Young AJ on 11 March 2013 in proceedings numbered 2011/69385, to:
(a) the disposition of property by the appellant insofar as that disposition is by way of payment into court of the security, the subject of order 1 above; and
(b) the disposition by a bona fide arms-length sale of any of the items of property of the appellant identified in paragraphs [4] to [8] of the appellant's affidavit sworn 11 February 2013 in such proceedings, if required to meet the payment into court of the security, the subject of order 1 above.
(4) The appellant to pay the respondent's costs of the 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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