Section 1335(1) of the Corporations Act 2001 (Cth) applies to corporate appellants, not only plaintiffs at first instance. The presence of a litigation funder supporting an insolvent corporate appellant, combined with the appellant's insolvency, constitutes 'special circumstances' under Pt 51 r16 of the Supreme Court Rules. However, where a solvent co-appellant is pursuing substantially overlapping claims and it is highly likely that costs would be ordered against both appellants if the appeal fails, the discretion should be exercised against ordering security.
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