Zakka v George Elias t/as Cadmus Lawyers

[2012] NSWCA 277

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeals
3. › Security for costs
4. › Special circumstances
5. › Impecunious appellant
6. › Whether appeal would be stultified
7. › Whether benefit to creditors constitutes special circumstances
8. › Uniform Civil Procedure Rules 2005 (NSW), r 51.50(1)
1. Practice and Procedure
2. › Appeals
3. › Security for costs
4. › Third parties standing behind appellant
5. › Whether creditor who consented to annulment of bankruptcy should be required to fund security
6. › Whether prospective benefit to creditor sufficient to preclude appellant from pursuing appeal

Quick Take

Where an impecunious appellant's creditor stands to benefit from a successful appeal, the prospective benefit must be of sufficient magnitude to warrant the conclusion that the appeal is effectively being brought for the creditor's benefit before the creditor's failure to provide security can constitute a special circumstance. A creditor whose prospective benefit represents less than 25% of the total judgment, who only reluctantly consented to annulment of the appellant's bankruptcy, is not in a position that warrants treating the appeal as brought for its benefit. The appellant's impecuniosity being alleged to have resulted from the respondents' breaches of duty is a relevant factor against ordering security.