Anderson v Canaccord Genuity Financial Ltd [2022] NSWCA 168

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Anderson v Canaccord Genuity Financial Ltd [2022] NSWCA 168 Hearing dates: 17 August 2022 Date of orders: 30 August 2022 Decision date: 30 August 2022 Before: Basten AJA Decision: (1) With respect to the notice of motion filed on 6 June 2022 seeking a stay of the costs orders made on 7 February 2022, as varied on 24 May 2022, upon the appellant Daniela Anderson and Craig Anderson giving written undertakings not to dispose of their assets other than in the ordinary course of business or for the purposes of funding the appeal: (a) stay orders (1)-(15) made in the Equity Division on 24 May 2022 until 21 days after the determination of the appeals, and (b) order that the costs of the stay motion be the appellant's costs in the appeal to be payable by first, second, third and fifth respondents. (2) With respect to the applications by the first to sixth respondents for security for costs filed on 23 June 2022 (first, second and third respondents), 6 July 2022 (fourth respondent), 9 August 2022 (fifth respondent) and 23 June 2022 as amended on 15 August 2022 (sixth respondent): (a) dismiss the notices of motion; and (b) order that the costs of the motions be the appellant's costs in the appeal. Catchwords: APPEALS – security for costs – special circumstances – length and complexity of appeal – whether grounds reasonably arguable – respondents' estimates of likely costs of appeal – appellant's impecuniosity – overseas residence of appellant – circumstances of those likely to benefit from success – availability of litigation funding – whether lawyers with unpaid costs reasonably expected to fund appeal – Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50 APPEALS – stay of order for assessment of costs of trial – assessment referred to referee – expenses to be incurred in reference – possible futility – likely stay of enforcement of payment of costs if assessed – parties to focus on appeal – overriding principle of expeditious resolution of proceedings – undertaking not to dispose of assets CORPORATIONS – directors and officers – diversion of commercial opportunity – fiduciary duties – knowing assistance – other corporations' participation in breaches – vicarious liability for officer's breach of duty – damages for loss of a chance Legislation Cited: Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50 Cases Cited: Anderson v Canaccord Genuity Financial Ltd (No 2) [2022] NSWSC 649 Australian Executor Trustees (SA) Ltd v Kerr [2021] NSWCA 5 Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; [2006] HCA 41 Carter v Mehmet [2021] NSWCA 32 Gunasegaram v Blue Visions Management Pty Ltd [2018] NSWCA 179; 129 ACSR 265 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Hung v Aquamore Credit Equity Pty Ltd [2022] NSWCA 123 Porter v Gordian Runoff Ltd [2004] NSWCA 69 Porter v Gordian Runoff Ltd [2004] NSWCA 171 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Category: Procedural rulings Parties: Daniela Alejandra Anderson (Appellant) Canaccord Genuity Financial Ltd (First Respondent) Nicola Lesleigh Garrett (Second Respondent) Samuel Mark Renauf (Third Respondent) Falcon Prime Pty Ltd (Fourth Respondent) Acorn Capital Ltd (Fifth Respondent) Albany Capital Investors Pty Ltd (Sixth Respondent) Ashington Capital Pty Ltd (in liq) (Seventh Respondent) Ashington Management Pty Ltd (in liq) (Eighth Respondent) Representation: Counsel: Mr P Braham SC / Mr A Bhasin (Appellant) Mr T Boyle (First Respondent) Ms M Painter SC / Mr T Bagley (Second and Third Respondents) Mr R Sud (Fourth Respondent) Ms J Jaffray (Fifth Respondent) Mr S Gray (Sixth Respondent)