GRUZMAN PTY LTD v BATEMAN (trading as THE BATEMAN PHOTOGRAPHIC GROUP) [1995] NSWCA 186

GRUZMAN PTY LIMITED v BATEMAN (T/AS THE BATEMAN PHOTOGRAPHIC GROUP

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 20 November 1995

[1995] NSWCA 186

Priestley JA. This matter arises in an appeal by an unsuccessful plaintiff. The judgment against which the appeal was lodged would appear to have been delivered on 24 September 1993. Nothing of significance happened in the appeal until, at least so far as the court records show, the filing on 21 August 1995 of the motion which is now before the court.

In that motion the successful defendant at first instance asked that the plaintiff provide security for costs in the sum of $12,300. No letter requesting such security was sent or request otherwise was made by the defendant to the plaintiff prior to the filing of the notice of motion. The return date for the notice of motion was 4 September 1995 and on that day an order was made by consent that within fourteen days the appellant/plaintiff would provide security for the defendant/respondent's costs by a bank guarantee in the sum of $12,000 in a form suitable to the Registrar of the court. Costs were reserved and the matter was stood over for mention on 25 September 1995.

On that day and on a number of days following to which the matter was successively adjourned the court was told that the plaintiff had not yet been able to provide the security.

When the matter came before the court today the court was told, and there is no contest about the fact, that security has still not been provided although efforts are still being made on the part of the plaintiff/appellant to obtain that security.

For the defendant it was said that the matter should be brought to a head and the best way of doing that would be to stay any further proceedings in the appeal until the order for security is complied with. That suggestion was not opposed by the plaintiff/appellant who recognised that it had sound reason to support it.