RIZZUTI v HANCOCK [1989] NSWCA 177

RIZZUTI v HANCOCK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 9 October 1989

[1989] NSWCA 177

Mahoney JA This is a matter in which Mr Justice Clarke on 11 July 1988 made anorder that the security for the costs of the appeal in the amount of $4000 be provided by a date indicated. The date has been extended on at least three occasions since that time. To date no security has been provided. It is said that Mr Rizzuti, the appellant, has other assets available from which security may be provided. However, his claim has been substantially that he would provide the security from the proceeds of a worker's compensation case which he has claimed has been pending from time to time. Mr Rizzuti has placed before the court this morning a document I have initialled and placed with the papers in which he indicates that on 3 October 1989 that worker's compensation case was heard and an order was made for an award of weekly payments and four years' wages in arrears. The assumption has been that the security can be provided out of that amount.

This is a matter which, for reasons which are obvious from the papers before the court, should be brought to a head. I have indicated to Mr Rizzuti the order that I propose to make and he has raised no objection to it. In the circumstances, therefore, I direct that the security ordered to be provided on or before 11 December 1989. If the security is not so provided, the appeal is to be dismissed with costs, including the costs of this motion. If security is provided as ordered, the costs of this motion are to be the defendant's costs in the appeal.