FPM Constructions Pty Ltd & Anor v The Council of the City of Blue Mountains

[2005] NSWCA 147

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Insolvent corporate appellant
5. › Discretionary factors
6. › Delay in bringing application
7. › Whether delay warranted refusal of security
8. › Corporations Act 2001 (Cth), s 1335(1)
9. › Supreme Court Rules 1970 (NSW), Pt 51 r 16
1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Insolvent corporate appellant
5. › Discretionary factors
6. › Merits of the appeal
7. › Whether substantial prospects of success militate against order for security
1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Insolvent corporate appellant
5. › Discretionary factors
6. › Respondent's responsibility for appellant's impecuniosity
7. › Whether respondent caused the very impecuniosity relied upon

Quick Take

A respondent seeking security for costs on appeal must act promptly after service of the notice of appeal and should not allow a hearing date to be fixed without opposition if it intends to seek security. Delay of 24 weeks, particularly where the respondent acquiesced in the fixing of a hearing date, may be fatal to the application. Where the appeal has substantial prospects of success and success would establish the respondent's responsibility for the appellant's impecuniosity, the discretion will ordinarily be exercised against ordering security.