Taouk v Assure (NSW) Pty Ltd

[2017] NSWCA 160

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Special circumstances under UCPR r 51.50
5. › Whether non-compliance with orders at first instance and unpaid costs orders constitute special circumstances
6. › Whether impecuniosity and failure to pay earlier costs orders individually or collectively constitute special circumstances
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50
1. Practice and Procedure
2. › Security for costs
3. › Natural persons
4. › Divestment of assets
5. › Whether reason to believe appellant divested assets to avoid consequences of proceedings
6. › Assets held through discretionary trusts
7. › Whether transfers at undervalue by trustee to associates of appellant provided reasonable basis for belief of intentional divestment
8. › Uniform Civil Procedure Rules 2005 (NSW), r 42.21(1)(f)
1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Impecuniosity of appellant
5. › Whether impecuniosity alone sufficient to justify security for costs
6. › Whether respondent established appellant lacked sufficient assets to satisfy costs order
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 42.21(1B), 51.50

Quick Take

An appeal will not ordinarily be stayed or security for costs ordered on the basis that costs of primary proceedings have not been paid, because a successful appeal would set aside the costs award. Where an appellant holds interests in assets through discretionary trusts, the court will assess the actual reduction in the appellant's equity share (not the gross value of transferred properties) when determining whether there is reason to believe assets were divested to avoid costs consequences. The 'reason to believe' standard under UCPR r 42.21(1)(f) requires a reasonable basis for belief, assessed on limited evidentiary materials at the interlocutory stage.