Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2017] NSWCA 342

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2017] NSWCA 342 Hearing dates: 13 December 2017; 19 December 2017 Decision date: 19 December 2017 Before: Basten JA Decision: (1) Stay the operation of orders (10), (11) and (12) made in the Common Law Division on 6 December 2017 pending determination of the appeal, or further order of the Court. (2) The costs of the motion for the stay be the appellant's costs in the appeal. (3) Dismiss the respondents' motion seeking security for costs. (4) Order that the costs of the motion for security for costs be the appellant's costs in the appeal. (5) Direct that the matter be listed before the Registrar on 22 January 2018 for such directions as are necessary to ensure the matter is ready for hearing on the date fixed for hearing, namely 29 January 2018. Catchwords: CIVIL PROCEDURE – application for stay of orders pending appeal – loan to respondents under financing agreement – loan secured by mortgage – respondents unable to meet commitments – appellant's application for possession of property dismissed – stay of orders providing for discharge of mortgage and security deeds pending appeal – whether refusal of stay likely to result in loss of subject matter of appeal

CIVIL PROCEDURE – security for costs pending appeal – power to order security under Corporations Act 2001 (Cth), s 1335 and Uniform Civil Procedure Rules 2005 (NSW), r 51.50 and r 42.21 – whether sufficient doubt regarding appellant's ability to pay respondents' costs if unsuccessful on appeal Legislation Cited: Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50 Cases Cited: Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205 Wang v Farkas (No 2) [2014] NSWCA 57 Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd as Trustee of the Harry Triguboff Foundation [2017] NSWCA 331 Category: Procedural and other rulings Parties: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) (Appellant) Elizabeth Ann Calleja (First Respondent) Calleja PJC Furniture Freighters Pty Ltd (Second Respondent) Representation: Counsel: M W Young SC (Appellant) N Obrart (Respondent)