This situation arose recently for our client who had obtained a judgment in the Supreme Court against the defendant. The defendant did not pay the judgment amount and lodged an appeal in the NSW court of Appeal. This meant that even though our client had spent a considerable amount of legal costs already, he was being put to more expense defending the appeal. The defendant claimed to have no assets in her name and very little money in her bank account but at the same time had stated that she could get money from her husband whenever she liked. Our client applied for the defendant/appellant to be ordered to pay into court an amount from which he could recover his costs of the appeal if her appeal was unsuccessful. In order to obtain security for costs against the defendant our client was required to show special circumstances beyond the mere fact that the defendant/appellant had no money. His Honour Justice McFarlan found that there was an “essential unfairness” constituting “special circumstances” if any judgment could not be enforced against her whilst at the same time she had the means, by request to her husband, to obtain funds to meet such expenses as she wished to pay. His Honour found an essential unfairness in the defendant/appellant being immune from enforcement when at the same time she had ready access to funds to pay her lawyers in the appeal and also in other non-related proceedings in which she was involved. Consequently, the court ordered that the defendant/appellant pay an amount into court as security for the costs of the appeal and the application for security for costs of the appeal.
The judgment is available at the following link