TANNING RESEARCH LABORATORY INC v O'BRIEN [1988] NSWCA 153

TANNING RESEARCH LABORATORY INC v O'BRIEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 14 March 1988 [1988] NSWCA 153

COSTS — security for appeal — need for "special circumstances" to be shown — appeal by liquidator of company — cross-appeal by creditor — lack of liquid assets of company proved — whether security should be ordered to protect respondent to appeal — order made in associated litigation produces payment into Court — whether Court would infer that funds available if so required from the same backer — held: security for costs of appeal would not be ordered because of (a) appeal by liquidator appears bona fide; (b) claimant has filed cross-appeal; (c) appeal already listed for hearing in near future; and (d) claimant has delayed in bringing motion. Lydney & Wigpool Iron Ore Company v Bird (1883) 23 Ch D 358; P G Gabel Pty Limited (In Liquidation) v Katherine Enterprises Pty Limited (1977) 29 FLR 108, 113 applied. — Reasons for requirement of promptness in such applications explained. Supreme Court Rules, Pt51, Rule 11(1).

ORDERS 1. Motion dismissed. 2. Claimant must pay the opponent's costs.

Kirby P In the litigation between the claimant and the opponent, Cohen J made orders on 3 June 1987 which two days later the opponent, the liquidator of Hawaiian Tropic Pty Limited, sought to test in this Court by way of appeal. In due course, the claimant filed a cross-appeal challenging the amount of the debt which Cohen J permitted the claimant to prove against the liquidator.

The present motion is for security for costs. Pt51 Rule 11 of the Supreme Court Rules provides that the Court of Appeal may in special circumstances order that such security as the Court of Appeal thinks fit be given for the cost of an appeal. I am dealing with the motion pursuant to the powers conferred on me by s46 of the Supreme Court Act, 1970.