VERATAU v WIMBORNE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA 16 May 1994 [1994] NSWCA 333 Handley JA Mr Broun QC, who appears for the respondent on the appeal and the claimant in the motion moves for an order that the appellant provide security for the costs of the appeal pursuant to PtS1 rll of the rules. Under the rule the Court's power is to order security for costs if special circumstances are made out. The present litigation is unfortunate because the appellant is the daughter of the respondent. The dispute before the Equity Division related to the beneficial ownership of shares in a New Guinea gold mining company held in the name of the appellant. There was no dispute that the moneys used to acquire the shares came from the respondent. The only issue at the trial was whether the respondent was able to displace the presumption of advancement which arose because he, as father, had put property in the name of his daughter. Young J, the trial Judge, having heard the oral evidence of the, father and the daughter and other evidence relating to the surrounding circumstances both at the time and subsequently, concluded that the father had succeeded in rebutting the presumption of advancement. He granted relief on the basis that the daughter was trustee of the shares for the father. The daughter has appealed as of right to this Court as she is entitled to do. However, there is undisputed evidence that she is not in employment, does not own any land and has minimal assets. With some encouragement from me, the parties have successfully negotiated an interim arrangement which will enable the respondent, subject to his undertaking as to damages, to sell the gold mining shares pending the hearing of the appeal, with the proceeds of sale being held in an interest-bearing account to abide the outcome of the appeal. In addition, the appellant has consented to an order that she pay into an interest-bearing account the dividend or dividends she has received on the shares. These sensible arrangements have enabled the Court to dispose of the application for a stay of proceedings brought by the appellant. However the common sense and co-operation evidenced in these interim arrangements does not of itself displace any entitlement which the respondent may have for security for costs. These are always difficult cases because one possible effect of an order for security is that the appellant will not be able to prosecute the appeal, with all the potential that this carries for compounding any injustice that may have resulted from any error on the part of the trial court. On the other hand, the presumption in this Court must be that the judgment of the trial judge is correct until the contrary is established. I have considered in a preliminary way the reasons for judgment of Young J. The issue before him essentially was whether the father or the daughter was to be believed in relation to a conversation which took place prior to the acquisition of the shares. The father, carrying the onus as plaintiff and also the onus of displacing the presumption of advancement, was held to have discharged that onus. 2 UNREPORTED JUDGMENTS It seems to me, despite the cogent comments of Mr Anderson, the solicitor for the appellant, that the judge's findings attract the principle in Abalos v Australian Postal Commission, and that it will not be an easy task for the appellant to secure a reversal of the judgment. I conclude therefore that I should make an order for security but allow the appellant plenty of time in which to comply with the order. Also, it seems to me that the respondent is not entitled to security in the sum of $6,000 as claimed because much of the costs referred to in the affidavit of Mr Hallion were incurred prior to the filing of the motion for security. I order that the appellant provide security for costs in the sum of $3,500 to the satisfaction of the Registrar and that such security be provided on or before 18 November 1994 without any stay in the meantime so that the appellant will not lose priority. In the event of the appellant failing to provide security as ordered, the respondent is to be at liberty to move for the appeal to be dismissed for want of prosecution. I order that the costs of this motion be costs in the appeal. I also order that the costs of the motion for a stay of execution be costs in the appeal.