Etcell t/as Ikonic Homes v F & J Investment Assets Pty Ltd atf The Mustafa Property Trust

[2024] VSCA 245

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Application for leave to appeal
4. › Impecunious applicant
5. › Whether unacceptable risk that respondents' costs would not be paid if applicant unsuccessful
6. › Whether order for security would stultify appeal
7. › Significance of risk of stultification on appeal as distinct from trial
8. › Relevance of number and nature of grounds of appeal
9. › Broad brush approach to prospects of success
10. › Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 64.38(2)

Quick Take

The mere existence of a risk of stultification does not preclude an order for security for costs on appeal; the risk must be weighed against the injustice to a respondent defending an appeal without realistic prospect of recovering costs. The number and nature of extensive grounds of appeal is a relevant factor indicating risk of unnecessary costs to respondents. On applications for security for costs, it is unnecessary and inappropriate to undertake detailed examination of appeal grounds and their likely prospects.