Swift v McLeary [2013] NSWCA 173

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Swift v McLeary [2013] NSWCA 173 Hearing dates: 27 May 2013 Decision date: 14 June 2013 Before: Gleeson JA Decision: (1) The appellant provide within 14 days security in the sum of $40,000 for the respondent's costs of the appeal by payment into court. (2) The appeal be stayed until such security is provided. (3) The Court notes the consent given by the respondent to the appellant, pursuant to order 2(b) made by Young AJ on 11 March 2013 in proceedings numbered 2011/69385, to: (a) the disposition of property by the appellant insofar as that disposition is by way of payment into court of the security, the subject of order 1 above; and (b) the disposition by a bona fide arms-length sale of any of the items of property of the appellant identified in paragraphs [4] to [8] of the appellant's affidavit sworn 11 February 2013 in such proceedings, if required to meet the payment into court of the security, the subject of order 1 above. (4) The appellant to pay the respondent's costs of the motion. [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 - costs - security for costs -- where appellant has unexplained dissipation of assets - impecuniosity - whether special circumstances shown Legislation Cited: Corporations Act 2001 Uniform Civil Procedure Rules Cases Cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 Green v CGU Insurance Ltd [2008] NSWCA 148; 67 ACSR 105 Hastings v Hastings [2009] NSWCA 294 Jeffrey and Katauskas Pty Ltd v SST Consultation Pty Ltd [2009] HCA 43; 239 CLR 75 J M Properties Pty Ltd v Strata Corporation No 13975 Inc [2006] SASC 227 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Levy v Bablis [2011] NSWCA 411 Marks-Isaacs v Fowler [2005] NSWCA 37 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 P S Chellaram & Co Ltd v China Ocean Shipping [1991] HCA 36; 102 ALR 321 Raptis v Wija Investments Development Pty Ltd [2007] NSWSC 870 Shannon v Australia and New Zealand Banking Group Ltd (No 2) [1994] 2 Qd R 563 Varley v Varley [2006] NSWSC 1025 Vista Capital Developments Pty Ltd v Duncombe [2010] FMCA 793; 245 FLR 389 Texts Cited: Young, Croft, Smith, On Equity (Lawbook Co, 2009) Category: Interlocutory applications Parties: Martin Swift (Appellant) Jeffrey John McLeary (Respondent) Representation: Counsel: J Johnson (Appellant) B Bradley (Respondent) Solicitors: Beazley Singleton Lawyers (Appellant) Shotters Lawyers (Respondent) File Number(s): 2012/384187 Publication restriction: No Decision under appeal Jurisdiction: 9111 Citation: McLeary v Swift [2012] NSWSC 1403 Date of Decision: 2012-11-21 00:00:00 Before: Windeyer AJ File Number(s): 2011/69385