Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tadrous v Tadrous [2011] NSWCA 87 Hearing dates: 4 April 2011 Decision date: 04 April 2011 Before: Young JA Decision: (1) Stay of proceedings declined. (2) Appeal expedited. (3) Security for costs ordered. (4) Directions made. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE- security for costs- UCPR Pt 51 r 50- no security for costs to be awarded for an appeal unless there are special circumstances- special circumstances differ from case to case and one must look at the whole of the circumstances- there are special circumstances if an appeal is considered to be hopeless- in view of lack of detail in notice of appeal, appeal appeared to be in "hopeless" category- leave to amend granted. Legislation Cited: Uniform Civil Procedure Rules Pt 51, r 50 Cases Cited: Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 Category: Interlocutory applications Parties: Michael Tadrous (Appellant) Tanya Tadrous (Respondent) Representation: Counsel: A G Martin (Appellant) J G Renwick and E Peden (Respondent) Solicitors: Proctor & Associates (Appellant) Wyatt Attorneys (Respondent) File Number(s): 2007/258058 Judgment 1YOUNG JA: There were three applications before the Court this morning. The first was by the appellant seeking a stay of an order made by the primary judge, Pembroke J. 2Whenever a stay application is made one must look to see what it is that the applicant seeks to stay. In the present case it is a declaration of equitable charge in the sum of $1.052 million over the appellant's property at Yagoona. 3To enforce that charge some application will have to be made to the Equity Division and the judge at that time can consider whether he or she should adjourn the matter. Accordingly, it is no utility to just stay the order and that motion should be dismissed. 4The other matters are whether there should be security costs ordered and whether the appeal should be expedited. Dealing with the latter matter it would seem to me that the circumstances of this family dispute would be best accommodated by an early rather than later hearing. I do not think that the matter is so urgent that it should displace any case that has already been fixed, but subject to that, it should be expedited. I would note for the Registrar's benefit that it does not seem to me that the case will be ready for all the appeal books to be put before a judge before 31 May. 5I now pass to the question of security for costs. This is also an awkward matter because one has got to be very careful to ensure that, by ordering security, one does not deprive a person of their legitimate right to have a decision at first instance reviewed by this Court. 6On the other hand, one must also be careful to see that a person does not just outflank a decision at first instance by putting on an appeal, knowing full well that it is more likely than not that time will be bought but, in practical terms, at no cost. 7When considering the question of security for costs in the Court of Appeal, the Court looks to Pt 51 r 50 of the Uniform Civil Procedure Rules which provides that, in special circumstances, the Court may order security but otherwise no security for an appeal is to be ordered. 8The matters which constitute special circumstances differ from case to case and one must look at the whole of the circumstances of the case. However, the authorities show that it does qualify as special circumstances that an appeal is considered to be hopeless ( Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310; Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247). 9The present appeal comes from a decision where the learned primary judge said that his conclusion depended on findings of fact that he had made, having regard to the credibility of the plaintiff and the defendant, the inferences available from non-contentious facts and documents and the inherent probabilities. 10The primary judge very clearly preferred the evidence of the respondent to that of the appellant, see particularly [45] and the last sentence of [42] of his Honour's judgment. 11The notice of appeal is, as many are these days, rather uninformative as to how the primary judge erred in his fact finding exercise. Paragraph (1)(a) said there was no or insufficient evidence to support one finding and (1)(b) said that another finding was against the weight of evidence and based upon the wrong conclusion that the respondent was a witness of credit. That really is not good enough. 12If this was a case where the notice of appeal or alternatively the submissions in support of the appellant's case were to show some particular way in which the judge took into account irrelevant considerations, or otherwise made particular mistakes, then it may be that I would not have come to the conclusion that, on the material before me, the appeal was not fairly arguable. But where none of that sort of material can be pointed to it is hard to resist the view that I currently take that, on this material, the appeal is hardly likely to succeed. 13Mr A G Martin, of counsel for the appellant, referred me to State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 at [93] p 620 and following, where Kirby J, who agreed with the plurality, set out a series of propositions whereby a decision purely on fact and credibility might be overturned on appeal. 14There is no doubt at all that that situation may occur, but on this sort of application, unless there is some material to show that the case comes under one of Kirby's J propositions, that does not take the appellant very far. The other point that was made by Mr Martin was that the Court should be slow to order an individual plaintiff to provide security for costs. I am not too sure whether that proposition is wholly correct. 15Certainly, as I said at the very beginning of these reasons, the Court does bear in mind the overall proposition that a person should have the right to have this Court review the matter and should not be deprived of that right by impecuniosity. Now in the present case, one could not say that the appellant was impecunious. It may well be that if his development proposals go ahead he will be in quite a good financial position, but certainly at the moment he has got a liquidity crisis, to put it mildly. 16The respondent seeks costs to be secured in the amount of $46,000, on the basis that it would take three days to prepare a one day appeal. In view of the fact that Mr Renwick and Dr Peden are counsel for the respondent and seeing that at the moment the issues seem to be fairly simple, I must confess I find it rather difficult to comprehend how they would spend three days in preparation for a simple appeal like this. 17It seems to me, that at the moment, security for costs in something like the sum of $21,000 would be adequate, with liberty to apply for an increase after the case has settled down if it is revealed to be more complicated than it first appears. 18Accordingly, I make the following orders; first, I order that the appeal be expedited, not to be listed before 31 May. Secondly, I order that the appellant provide security for the respondent's costs in the sum of $21,000, that to be lodged by 4 May 2011. Security may be given by a banker's bond or in cash or in such other way as the Registrar of the Court of Appeal may consider sufficient. 19Thirdly, I order that the respondent have liberty to apply for additional security after 1 June 2011 at her own risk as to costs. 20Fourthly, the index to the Blue Books is to be agreed between the parties by 18 April and the Blue Books to be filed and served by 2 May. 21Fifthly, I direct that the notice of appeal be amended and that the amended notice of appeal be filed and served no later than 18 April. The amended notice of appeal is to state precisely in what respects the primary judge is alleged to have miscarried in his fact finding. 22Sixthly, written submissions by the appellant are to be filed and served by 2 May 2011, respondent by 16 May 2011 and any reply by 23 May 2011. Note that the parties will put in the appropriate notices of challenges as to fact and any notice of contention in accordance with the Rules. 23The Orange Book is to be available no later than 30 May 2011. The Registrar may set the case down for hearing. The costs of the motion for security should be the respondent's costs in the cause. [Discussion] 24For the notice of motion of 3 March, the appellant should pay the respondent's costs. 25I give liberty to apply on three days' notice to the Registrar. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2011