Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 Hearing dates: 10 December 2012 Decision date: 18 December 2012 Before: Ward JA Decision: Orders made for provision of security for costs of the appeal in favour of the respective respondents. [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: PRACTICE AND PROCEDURE - application for security of costs - whether special circumstances exist for grant of security - where hearing below was substantial in length - where appellant seeks to agitate almost all legal and factual issues raised at first instance - where estimated costs of the appeal will be significant - where appellant impecunious and there is a risk that the applicants may have difficulty enforcing a costs judgment in their favour against appellant - whether security for costs should be granted on a staged basis Legislation Cited: Civil Procedure Act 2005 (NSW) Limitation Act NSW 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 Idoport Pty Limited v National Australia Bank Limited; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [35] [2001] NSWSC 744 Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 Levy v Bablis [2011] NSWSCA 411 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Tait v Bindal People [2002] FCA 332 Weldon v Maples, Tyeesdale & Co (1887) 20 QBD 331 Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Interlocutory applications Parties: David Ballard (Appellant/Respondent on motions) Brookfield Australia Investments Ltd (First Respondent/Applicant on motion) Multiplex Corporate Agency Ltd (Second Respondent/Applicant on motion) Construction Forestry Mining and Energy Union (Third Respondent/Applicant on motion) Construction Forestry Mining and Energy Union (New South Wales Branch) (Fourth Respondent/Applicant on motion) Andrew Ferguson (Fifth Respondent/Applicant on motion) Representation: Counsel: R W Tregenza (Appellant/Respondent on motions) A S Bell SC (First & Second Respondents/Applicants on motion) J H Pearce (Third, Fourth & Fifth Respondents/Applicants on motion) Solicitors: Sagacious Legal Pty Ltd (Appellant) Clayton Utz (First & Second Respondents) Taylor & Scott Lawyers (Third, Fourth & Fifth Respondents) File Number(s): CA 12/169375 Decision under appeal Citation: [2011] NSWSC 426 Date of Decision: 2012-05-03 00:00:00 Before: McDougall J File Number(s): 07/266587