ANZ & Ors v Oswal

(2013) 41 VR 245; [2013] VSCA 156

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Plaintiff ordinarily resident outside jurisdiction
4. › Whether assets within jurisdiction provide sufficient security
5. › Escrow funds as security
6. › Whether immediate right to asset required
7. › Evidentiary burden on applicant for security
8. › Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 62.02, 62.03
1. Practice and Procedure
2. › Security for costs
3. › Discretionary nature of order
4. › Principles governing exercise of discretion
5. › Whether all circumstances must be weighed
6. › Whether single factor can be determinative
1. Appeal
2. › Leave to appeal
3. › Appeal from Associate Justice to Judge
4. › Appeal by way of rehearing de novo
5. › Whether Niemann v Electronic Industries test or lower threshold applies
6. › Whether demonstration of error required at leave stage
7. › Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 77.06
1. Appeal
2. › Leave to appeal
3. › Court of Appeal
4. › Application for leave to appeal interlocutory order
5. › Niemann v Electronic Industries test
6. › Whether decision attended with sufficient doubt
7. › Whether substantial injustice

Quick Take

Where an appeal from an Associate Justice is by way of rehearing de novo, the test for leave is whether it is reasonably arguable that a different order might be made — not the Niemann error-based test. On security for costs, a plaintiff need not demonstrate an immediate and indefeasible right to an asset within the jurisdiction; a beneficial interest in a fund that will become available in the future (such as escrow funds) may suffice. The applicant for security bears the evidentiary burden of showing that existing assets within the jurisdiction are insufficient, particularly where the relevant information is peculiarly within the applicant's knowledge.