Facade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd

[2015] VSCA 169

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Application on appeal
4. › Impecunious corporate appellant in liquidation
5. › Genuinely arguable question of law of considerable public importance
6. › Whether security should be ordered where impecuniosity caused by respondent's conduct
7. › Whether application brought too late after appeal preparation complete
8. › Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 64.38
9. › Corporations Act 2001 (Cth), s 1335
1. Practice and Procedure
2. › Security for costs
3. › Timing of application
4. › Whether respondent stood by while appellant prepared appeal
5. › Effect of current appellate procedure requiring written case at time of leave application

Quick Take

Where a prospective appellant's impecuniosity is known to the successful party at trial, it will often be unjust to allow that party to stand by and seek security only after the appellant has performed all work necessary to prepare the appeal for hearing. The genuinely arguable nature of a question of law of considerable public importance, and evidence that the respondent's conduct caused the appellant's impecuniosity, are significant factors weighing against the grant of security. The availability of alternative proceedings outside the statutory scheme is a matter to which little weight can be attached where the appellant has a valid statutory claim.