Ulladulla Creative Images Pty Ltd v Tibbles [2021] NSWCA 200

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ulladulla Creative Images Pty Ltd v Tibbles [2021] NSWCA 200 Hearing dates: 16 August 2021 Date of orders: 16 August 2021 Decision date: 16 August 2021 Before: Brereton JA Decision: (1) Time for the applicant to file and serve a notice of appeal substantially in the form annexed to its amended notice of motion filed 29 July 2021 be extended to 23 August 2021. (2) The amended notice of motion filed 2 August 2021 is otherwise dismissed with costs. (3) The applicant provide security in a form acceptable to the registrar for the respondents' costs of the appeal in the sum of $15,000, such security to be provided by 7 September 2021. (4) Liberty to apply in the event that the security is not provided in accordance with order 3. (5) Costs of the respondents' motion for security be costs in the appeal. Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – Stay of primary judgment – Appeal not unarguable – Appeal likely to be rendered nugatory without stay – Where judgment for portion of funds received from insurance payment – Disposition of funds unexplained by applicant – Indicia that appellant may be insolvent – Sums transferred from corporate appellant to director – Sums potentially recoverable by liquidator – Prejudice to respondents if potential appointment of liquidator deferred – Prejudice potentially mitigable by fixed and floating charge over assets of appellant and director – No such security offered – Stay refused COSTS – Security for costs – On appeal – Statutory power under Corporations Act 2001 (Cth), s 1335 – Relevant factors – Where credible evidence that appellant may be unable to pay adverse costs order if unsuccessful – Where director/sole shareholder declined to expose themselves to adverse costs order – Reductions to excessive proposed quantum – Security for costs ordered APPEALS – Procedure – Time limits – Extension of time to appeal – Where appeal filed one day out of time – Extension not opposed – No prejudice – Extension granted Legislation Cited: Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW), r 51.50 Category: Procedural rulings Parties: Ulladulla Creative Images Pty Ltd t/as Ulladulla Creative Images (Applicant) Ian Tibbles (First Respondent) Debbie Tibbles (Second Respondent) Representation: Counsel: E A Walker (Applicant) M Kalyk (Respondents)