Supreme Court New South Wales Medium Neutral Citation: Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1624 Hearing dates: 10 December 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: (1) Order 3 made on 10 November 2021, and stayed until further order on 3 December 2021, be varied so that $90,000 of the $145,000 of the security be released on account of costs. (2) There be no order for costs of the application. Catchwords: PRACTICE AND PROCEDURE – releasing security for costs – stay of order pending appeal – no question of principle Cases Cited: Barker v Lavery (1885) 14 QBD 769 Steven Binetter as the representative of the Estate of the Late Ida Wolff v Ronald Binetter [2020] NSWSC 552 Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249 Ida Wolff bht Steven Binetter v Binetter (No 2) [2021] NSWSC 1445 Category: Consequential orders Parties: Ida Wolff by her tutor Steven Binetter (Plaintiff) Ronald Binetter (Defendant) Representation: Counsel: D Studdy SC; C Freeman (Plaintiff) G Sirtes SC; C O'Neill (Defendant) Solicitors: Braddon Marx Solicitors (Plaintiff) Eakin McCaffery Cox (Defendant) File Number(s): 2018/166618 EX TEMPORE Judgment (Revised from transcript) 1. On 13 May 2020, I made an order for security for costs in these proceedings requiring the plaintiff to provide security for the defendant's costs in the amount of $145,000 (Steven Binetter as the representative of the Estate of the Late Ida Wolff v Ronald Binetter [2020] NSWSC 552). 2. On 1 October 2021, I dismissed the substantive proceedings and directed the parties to exchange submissions and forms of costs orders (see Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249). 3. On 10 November 2021, I made a costs order in favour of the defendant. I ordered that the funds paid into court pursuant to my earlier order be released to the defendant, but I stayed that order up to and including 10 December 2021, being today (see Ida Wolff bht Steven Binetter v Binetter (No 2) [2021] NSWSC 1445. 4. In the meantime, the plaintiff has filed a notice of appeal seeking a reversal of the dismissal of the proceedings and judgment for the principal sum in its favour against the defendant. 5. By notice of motion filed on or about 2 December 2021, the plaintiff sought an extension of the stay of the release of the security up to and including 14 days after the determination by the Court of Appeal of its appeal from my judgment. After exchanges of affidavits, the matter was listed for hearing before me today. 6. The basis upon which the extension of the stay of the release of the security is sought is two-fold; namely, the relative strength of the grounds of appeal and a concern raised by the plaintiff about the defendant's financial means, being such that if it is successful on the appeal, it will not be able to recover from the defendant the security that is foregone. That submission is made in the context that, if the plaintiff is successful on appeal, not only would it recover its costs of the proceedings and the security paid over, it would recover a principal debt of $1 million presumably with interest. 7. At the hearing of the application for the stay, I indicated to the parties that I would proceed on the basis that the appeal is reasonably arguable. Generally speaking, I will be subject to enough scrutiny by the Court of Appeal not to subject myself to the same. I observe that the conclusions that were adverse to the plaintiff were in part based on observations of demeanour and in part based upon an application of a legal test to the facts as found. 8. The real question ultimately turns on the relative assessment of the prejudice to the parties in light of the starting point that the defendant is entitled to the fruits of its victory. 9. In terms of authority concerning this particular circumstance, the closest is Barker v Lavery (1885) 14 QBD 769 ("Barker"), which noted that, at least in relation to the stay of a costs order, an unsuccessful party is not entitled to have the application granted as a matter of course. Instead, it would have to be shown that the other party would be unable to repay the costs if they are successful. 10. To that end, evidence was led on the application concerning the defendant, Dr Binetter's, assets and income. The adducing of that evidence occurred in the circumstances more fully described in the principal judgment, namely, a long period of what can only be described as hostilities between warring parties within the same family and what would appear to be their general reluctance to share information about their financial affairs. 11. The plaintiff's solicitor swore an affidavit setting out what was known by the plaintiff about Dr Binetter's assets and income. So far as income was concerned, and consistent with his practice as a medical specialist, at some point in the 1990s he was earning a very significant sum. However, the evidence shows a reduction, at least in taxable income, by 2006. The plaintiff's solicitor was only aware of a relatively modest amount in bank accounts and that he did not own real property. The plaintiff's solicitor's enquiries also revealed that a default judgment had been entered against Dr Binetter for just over $1.2 million in 2016. 12. This material was accompanied by requests for Dr Binetter to himself provide detailed evidence as to his assets and liabilities. 13. In response, Dr Binetter's solicitor swore an affidavit stating, on information and belief, that his client's taxable income for the year ended 30 June 2020 was $313,028 and that his taxable income for the year ended 30 June 2020 was approximately the same. His solicitor accepted Dr Binetter did not own real property. The solicitor annexed an extract from a bank statement indicating that in an account in his name there is a balance in excess of $1 million. He also annexes copies of consent orders made in this Court on 15 November 2021, setting aside the judgment referred to earlier and providing that the proceedings be otherwise dismissed. 14. Senior Counsel for the plaintiff, Mr Studdy SC, contended that this material was of limited weight, in that the evidence about income only came on information and belief. He noted that it is not known whether the amount standing in the bank account is security for some other liability, or someone else's liability, that there is no elaboration on what he submitted was a relatively curious circumstance of a default judgment being set aside five years later and that there is no evidence about the extent of Dr Binetter's liabilities. All that can be accepted. 15. What it has left is the Court in a position of uncertainty. So far as Barker is concerned, for my part I do not necessarily accept it is all or nothing. In circumstances where the plaintiff has done what it can to adduce evidence, and the defendant has adduced some, but not fulsome, evidence I do not see it is a position of simply handing victory to one party or another on the basis that the threshold has been overcome. 16. Instead, I think it is a matter of assessing, in the light of what I know about the appeal and the likely costs that were involved, the risk to the plaintiff that it will suffer prejudice if the security is released, as against the prima facie entitlement of the defendant to the fruits of its victory. 17. In those circumstances, I think the appropriate approach is a partial release of the security. To that end I will vary my earlier orders and order that $90,000 of the $145,000 of the security be released on account of costs. 18. I make no order for costs on the application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2021