HARWIN and ANOR v WOOD [NO 1] [1993] NSWCA 132

HARWIN v WOOD [NO 1]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ 11 October 1993, 11 October 1993

[1993] NSWCA 132

PRACTICE and PROCEDURE — security of costs — earlier refusal of Mareva injunction to prevent alleged dissipation of assets — later application for security of costs on grounds of dissipation and limited assets of appellant — proof of irrevocable order on funds in hands of solicitor for the appellant — exhaustion of such funds by judgment and costs to date — held: (Kirby ACJ):

(1) The refusal of the Mareva injunction, being addressed to a different issue, did not exclude the making of an order for security of costs of the appeal;

(2) Special grounds for security of costs had been shown and such security should be ordered.

ORDERS 1. Expedite the hearing of the appeal, category A, to the intent that the appeal will be heard within a period of approximately one month on a date to be fixed by the Registrar with due notice to the parties; 2. Order that the opponent pay as security for the costs of the appeal the sum of $5,750, such sum to be paid to the Registrar of the Court of Appeal or, if it is agreed between the solicitors for the respective parties, into a trust account jointly administered by those solicitors to abide the outcome of the appeal; and 3. Order that the opponent pay the costs of the claimants of and incidental to the motion for security of costs.

Kirby ACJ This is an application for security of the costs of an appeal to this Court. I am dealing with the motion pursuant to the powers conferred on me by the SuPreme Court Act 1970, s46.

The appeal has been brought by Ms Desre Clair Woods (the opponent) from an order made by McLachlan DCJ in favour of the claimants (Mr Derek Harwin and Ms Irene Harwin). The claimants were successful both before his Honour and in proceedings before an arbitrator.