Xenos v FAL Healthy Beverages Pty Ltd

[2017] NSWCA 240

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Security for costs of appeal
4. › Special circumstances under UCPR r 51.50
5. › Combination of factors constituting special circumstances
6. › Weak prospects of success
7. › New points raised on appeal
8. › Wide-ranging scope of appeal
9. › Risk of non-recovery of costs
10. › Absence of evidence of stultification
11. › Uniform Civil Procedure Rules 2005 (NSW), r 51.50
1. Practice and Procedure
2. › Appeals
3. › Prospects of success on appeal
4. › Credit-based factual findings
5. › Whether notice of appeal grapples with requirements for overturning credit-based findings
6. › Fox v Percy (2003) 214 CLR 118
1. Practice and Procedure
2. › Freezing orders
3. › Variation of exceptions to freezing order
4. › Variation to permit provision of security for costs

Quick Take

The combination of very weak prospects of success, new points raised on appeal not taken at trial, wide-ranging scope of the appeal, absence of evidence of stultification, and real risk of non-recovery of costs constitutes special circumstances for security for costs under UCPR r 51.50. An appellant who fails to challenge credit-based factual findings and does not grapple with the Fox v Percy requirements for overturning such findings faces a preliminary assessment of very weak prospects of success. The existence of pre-judgment freezing orders does not, without more, support an inference of post-judgment asset dissipation risk.