Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 Hearing dates: 18 September 2017 Decision date: 20 September 2017 Before: Gleeson JA Decision: 2017/165290
(1) The appellant provide within 14 days security in the sum of $65,000 for the respondents’ costs of the appeal by payment of that amount into court, or in such other form as the appellant and the respondents may agree before 4 October 2017.(2) Stay these proceedings until the appellant has provided security for the respondents’ costs of the appeal in accordance with order 1 above.
(3) The appellant to pay the respondents’ costs of the amended notice of motion dated 6 September 2017.
2016/80389
(1) The freezing orders made by the Court against the First Defendant, Timothy (Tim) Xenos (also known as Efthymios Xenos) in proceedings 2016/80389 on 14 March 2016 (as varied on 17 March 2016 and 10 May 2016 and extended on 15 May 2017 and 3 August 2017) be varied such that the exceptions in paragraph 10 to the orders be supplemented by adding sub-par (5), so that order 10 reads: “This order does not prohibit: … (5) the First Defendant from paying, or otherwise taking steps to provide out of his assets, security for the costs of the First and Second Plaintiffs (being the Respondents in proceeding 2017/165290) in proceeding 2017/165290, in the sum of $65,000”.Catchwords: PROCEDURE – Motion seeking security for costs of an appeal – whether respondents have demonstrated special circumstances exist enlivening the discretion to order security for costs – where appellant has not led any evidence or defended the motion – where appellant has not established that order for security for costs would stultify appeal – where appellant seeks to raise wide-ranging arguments on appeal – where appellant seeks to raise on appeal new points not raised at trial – where prospects of success in appeal are very weak – where real risk that respondents would not recover costs of appeal from appellant if they are successful. Legislation Cited: Corporations Act 2001 (Cth), ss 180, 181, 182, 286(1), 344(1)
Evidence Act 1995 (NSW), s 140
Uniform Civil Procedure Rules 2005 (NSW), rr 51.50, 51.53(1)Cases Cited: Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880
Bell Wholesale Co Ltd v Gates Expert Corporation (1984) 2 FCR 1
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Boncristiano v Lohmann [1998] 4 VR 82
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Fox v Percy (2003) 214 CLR 118
Gray t/as Clarence Valley Plumbing v Ware Building Pty Ltd [2012] NSWCA 438
JM Properties Pty Ltd v Strata Corporation No 13975 Inc [2006] SASC 227
Marks-Isaacs v Fowler [2005] NSWCA 37
Morris v Riverwild Management Pty Ltd (2011) 38 VR 103; [2011] VSCA 283
Patterson v BTR Engineering (Aust) Ltd (1989) 18…
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- Case
- [2017] NSWCA 240
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether special circumstances existed that would justify exercising the discretion to order security for the respondents' costs of the appeal. This involved assessing whether the appellant had established that such an order would stultify the appeal, considering the appellant's intention to raise wide-ranging arguments, including new points not raised at trial, and the very weak prospects of success in the appeal. A further consideration was the real risk that the respondents would be unable to recover their costs if successful.
Gleeson JA reasoned that the appellant had failed to demonstrate that the appeal would be stultified by an order for security. The Court noted the appellant's intention to raise new points on appeal and the weak prospects of success, which weighed against the appellant. Consequently, the Court found that special circumstances existed to warrant an order for security for costs.
The Court ordered that the appellant provide security in the sum of $65,000 for the respondents' costs of the appeal within 14 days, either by payment into court or by another agreed form. The proceedings were stayed until this security was provided. Additionally, the Court ordered that the appellant pay the respondents' costs of the amended notice of motion. The freezing orders made against the appellant were varied to permit the payment of this security.
Orders
Orders of the court
2017/165290
(1) The appellant provide within 14 days security in the sum of $65,000 for the respondents’ costs of the appeal by payment of that amount into court, or in such other form as the appellant and the respondents may agree before 4 October 2017.
(2) Stay these proceedings until the appellant has provided security for the respondents’ costs of the appeal in accordance with order 1 above.
(3) The appellant to pay the respondents’ costs of the amended notice of motion dated 6 September 2017.
2016/80389
(1) The freezing orders made by the Court against the First Defendant, Timothy (Tim) Xenos (also known as Efthymios Xenos) in proceedings 2016/80389 on 14 March 2016 (as varied on 17 March 2016 and 10 May 2016 and extended on 15 May 2017 and 3 August 2017) be varied such that the exceptions in paragraph 10 to the orders be supplemented by adding sub-par (5), so that order 10 reads: “This order does not prohibit: … (5) the First Defendant from paying, or otherwise taking steps to provide out of his assets, security for the costs of the First and Second Plaintiffs (being the Respondents in proceeding 2017/165290) in proceeding 2017/165290, in the sum of $65,000”.
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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