CITATION: Warner v Frost [1999] NSWCA 327 FILE NUMBER(S): CA 40079/99 HEARING DATE(S): 6 September 1999 JUDGMENT DATE:
6 September 1999PARTIES :
Susan Mary Frost - 1st claimant/1st respondent
Melissa Frost (by her next friend Susan Mary Frost) - 2nd claimant/2nd respondent
Donald Martin - 3rd claimant/3rd respondent
Carolyn Warner - opponent/appellantJUDGMENT OF: Registrar Jupp
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 1143/98; 1144/98; 1145/98 LOWER COURT JUDICIAL OFFICER: Garling DCJ
COUNSEL: Mr Young for claimants/respondents
Mr Motbey for opponent/appellantSOLICITORS: McDonald Johnson - claimants/respondents
Papas J Attorney - opponent/appellantCATCHWORDS: security for costs DECISION: Motion dismissed; costs of motion to be costs in the appeal
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40079/99
REGISTRAR JUPP
6 September 1999
Carolyn Warner v Susan Mary Frost & Ors
JUDGMENT
1 REGISTRAR: In these proceedings a Notice of Motion has been filed by the respondents on 17 August 1999 seeking an order for security of cost of the appeal. The appeal is from a decision of Garling DCJ in favour of the respondents and against the appellant and her husband jointly.
2 It has been pointed out during the course of argument before me today that the appeal was filed out of time, albeit by only a few days.
3 A bankruptcy notice was served on the opponent/appellant on 10 March 1999. An application for a stay of the judgment was considered by Justice Fitzgerald on 19 April 1999. Justice Fitzgerald refused the appellant's application for a stay but noted that in his view the appeal was arguable. A Notice of Appeal with appointment was filed on 5 May 1999 and on 12 August 1999 the appeal was fixed for hearing on 4 November 1999. The estimate given for the hearing of the appeal is two hours.
4 The basis for the respondent's application is the admitted impecuniosity of Mrs Warner. This was disclosed in the evidence considered by Justice Fitzgerald and was also evident in an application brought in the Federal Court to set aside the bankruptcy notice. The matter that has muddied the waters slightly is that in the course of the proceedings before Justice Fitzgerald, Mrs Warner offered, as a condition of the stay that she was seeking, that she would provide $10,000 as security for cost of the appeal. As the stay was refused, the offer was not taken up.
5 The question of the current financial circumstances of Mrs Warner is open to conjecture. However, an affidavit of Mrs Warner was filed in court during the course of the hearing of the motion today and was read without objection. Paragraph 4 of that affidavit states:6 I have been worried as to what implications can be drawn from that particular paragraph of Mrs Warners affidavit.…
"My present position is that I have no funds to obtain security for cost and if I am ordered to pay security for cost, I will not be able to pursue my appeal."
Continue reading Warner v Frost
Sign in free to access the full text
Details
- AGLC
- Warner v Frost [1999] NSWCA 327
- Case
- [1999] NSWCA 327
- Decision Date
CaseChat Overview and Summary
In *Warner v Frost*, heard before Registrar Jupp, the applicant sought security for costs against the respondent. The core of the dispute concerned the respondent's financial position and the perceived risk that they would be unable to meet any costs order made against them in the appeal proceedings.
The central legal issue before the Registrar was whether the respondent had established sufficient grounds to warrant an order for security for costs. This required the court to consider the respondent's financial circumstances and the likelihood of them being able to satisfy a costs order, balanced against the potential prejudice to the respondent's ability to pursue their appeal if security were ordered.
Registrar Jupp reasoned that the applicant had not discharged the onus of demonstrating that the respondent was likely to be unable to pay costs. The evidence presented did not establish a sufficient level of impecuniosity or a real risk of non-payment. Consequently, the Registrar concluded that an order for security for costs was not justified in the circumstances. The motion was dismissed, with the costs of the motion to be costs in the appeal.
The central legal issue before the Registrar was whether the respondent had established sufficient grounds to warrant an order for security for costs. This required the court to consider the respondent's financial circumstances and the likelihood of them being able to satisfy a costs order, balanced against the potential prejudice to the respondent's ability to pursue their appeal if security were ordered.
Registrar Jupp reasoned that the applicant had not discharged the onus of demonstrating that the respondent was likely to be unable to pay costs. The evidence presented did not establish a sufficient level of impecuniosity or a real risk of non-payment. Consequently, the Registrar concluded that an order for security for costs was not justified in the circumstances. The motion was dismissed, with the costs of the motion to be costs in the appeal.
Orders
Orders of the court
Motion dismissed; costs of motion to be costs in the appeal
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.