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[2026] NSWCA 14
procedural. The respondent’s notice of motion was dismissed on the appellant’s undertaking to preserve the Macquarie Park property’s available equity pending the appeal and to prosecute the appeal in a timely...
The Court refused the respondent’s requests for security for appeal costs and a stay. Although the appellant lived in China, he had substantial equity in an unencumbered New South Wales property. The existing freezing order and his undertaking to preserve that equity gave the respondent practical protection while the appeal was pending. The non-payment of interest and the Sheriff’s notice did not establish a materially greater risk that appeal costs would go unpaid. The Court did not decide whether a special-circumstances threshold applies when security is sought under UCPR r 42.21 in the Court of Appeal.
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2,376 words · generated 07/10/2026
Costi Cohen Pty Ltd obtained a District Court judgment against Yin Bo on 26 September 2025. The judgment was for $166,100 on a quantum meruit claim, interest of $17,137.94, and the respondent’s costs, which had not yet been agreed or assessed ([4]-[5]). The underlying claim had also included alleged breach of an agency agreement. Bo had actively defended the District Court proceedings, filing an amended defence and cross-claim ([4]).
2 cited instruments linked from this judgment.
Bo appealed. Costi Cohen then filed a notice of motion seeking two forms of relief: $76,980 as security for the respondent’s costs of the appeal, and a stay of the appeal until Bo paid the $17,137.94 interest amount ordered below ([1]). For security, the respondent relied particularly on UCPR r 42.21(1)(a), which concerns a party ordinarily resident outside Australia ([2]).
Bo was a natural person who was ordinarily resident in China. The evidence also showed that he was the registered proprietor of an unencumbered property at Macquarie Park in New South Wales, with an indicated value of at least about $900,000 ([3], [6], [16]). A freezing order already covered Australian assets up to $250,000 and specifically identified that property ([6]). The property had previously been subject to a contract for sale, but that contract was terminated on 3 October 2025, and the evidence was that Bo had not sought to sell the property since then ([7]).
At the motion hearing, Bo undertook not to dispose of the property or diminish its available equity through secured lending or another encumbrance pending the appeal, and to prosecute the appeal in a timely fashion ([19]). McHugh JA dismissed the motion on that undertaking. The costs of the motion were ordered to be costs in the cause ([39]-[40]). The judgment did not determine the merits of the appeal.
The central issue was practical, not simply geographic: would Bo’s residence outside Australia make it materially harder for Costi Cohen to recover a costs order if it succeeded in the appeal? The Court explained that foreign residence is concerning particularly when combined with an absence of local assets, because that combination may deprive a successful respondent of the benefit of a costs order ([14]). Security can protect against the costs, delay and risks associated with enforcement in a foreign jurisdiction ([14]).
The Court accepted that Bo was ordinarily resident outside Australia and that the power in r 42.21(1)(a) was engaged ([11]). But the Court did not treat that fact as automatically requiring security. It assessed the circumstances bearing on the practical risk of recovery.
First, Bo had substantial equity in the Macquarie Park property. The evidence indicated equity of at least $900,000, and the property was unencumbered by a mortgage ([16]). The Court rejected the respondent’s description of Bo as having “limited real property assets in New South Wales” ([16]). It also noted that the respondent had not produced evidence of substantial unsecured third-party liabilities that might prejudice its ability to enforce against the property ([16]).
Second, a freezing order already protected the respondent to a degree. The respondent argued that the judgment debt, interest and costs below might exhaust the order’s $250,000 cap, leaving no guarantee that any additional equity would remain available for appeal costs ([18]). Bo’s undertaking addressed that concern by preserving the property’s available equity while the appeal proceeded. The Court treated that as a powerful reason to conclude that the respondent was adequately protected ([20]-[21]).
Third, the Court considered Bo’s failure to pay the interest ordered below. The respondent relied on the form of the order, while acknowledging that the interest was in substance part of the judgment debt. The Court was not persuaded that this non-payment appreciably increased the risk that appeal costs would not ultimately be paid ([23]-[24]). It distinguished the question of enforcing the existing judgment debt from the particular risk relevant to the security application.
Fourth, the Sheriff’s Notice of Non Levy did not establish the respondent’s asserted risk. The evidence did not explain the circumstances of the attempted enforcement. The notice recorded unsuccessful attempts to contact an occupant, but also said it was not possible to ascertain whether Bo resided at the address or owned assets there. That statement suggested the Sheriff might not have understood that Bo was the registered proprietor ([25]). The Court therefore declined to treat the notice as proof that appeal costs could not be recovered.
The Court also considered matters raised by Bo. It accepted that there was no real suggestion he was impecunious, but noted that if he could pay the judgment debt, his failure to do so might reflect unwillingness and a risk that payment would occur only if compelled ([27]). It accepted that he was a natural person, but observed that r 42.21(1)(a) contemplates security being ordered against a natural person resident outside Australia. Bo did not identify particular hardship or contend that security would stultify his appeal ([28]). The Court did not assess the appeal’s prospects beyond noting that the respondent conceded there were arguable grounds ([29]).
The Court’s conclusion rested principally on the combination of local property equity, the existing freezing order and Bo’s undertaking ([31]-[34]). It recognised that those measures did not make recovery as straightforward as money paid into Court. But it said, “convenience is not the criterion”, and noted that a respondent would not generally be entitled to require a New South Wales-resident appellant to pay money into Court merely as security ([33]). On the facts, enforcement of a costs order was likely to occur in New South Wales despite Bo’s foreign residence ([14]-[15], [33]).
The stay request failed for a different reason. Costi Cohen asserted that it would be unjust to let Bo pursue the appeal while not paying the interest, and invoked the Court’s inherent jurisdiction to prevent abuse of process. But it cited no rule or authority and did not explain how the appeal itself was an abuse. The Court said that exposure to enforcement because of non-payment did not, without more, mean that pursuing the appeal was an abuse of process ([37]-[38]).
The judgment applies the security-for-costs provisions of the UCPR to a particular appeal and evidentiary record. It does not announce a general change to the law. UCPR r 51.50(1) provides that the Court may order security for appeal costs in “special circumstances”; r 51.50(2) says that, subject to the stated qualifications, security is not to be required; and r 51.50(3) says those provisions do not affect the Court’s powers under r 42.21 ([8]). Rule 42.21 contains the general power invoked here, including the criterion in r 42.21(1)(a) concerning ordinary residence outside Australia ([9], [11]).
An issue arose about whether special circumstances are also required when the respondent relies on r 42.21 in the Court of Appeal. The judgment notes that the parties’ written submissions appeared initially to assume that such a requirement applied, although the respondent departed from that position orally ([10]). McHugh JA expressed doubt that the rules imposed that condition on the separate r 42.21 power. The text appeared to provide independent powers, and r 51.50(3) expressly preserved the powers under r 42.21 ([10]).
However, the Court expressly said it was unnecessary to decide the point because Bo accepted that r 42.21(1)(a) was engaged ([11]). The decision therefore should not be read as finally resolving the relationship between the “special circumstances” requirement and r 42.21. Its operative reasoning concerns the exercise of discretion on the facts, not a definitive interpretation of that relationship.
The decision also confirms, for this application, a practical approach to foreign residence: the relevant concern was whether the respondent faced a real recovery risk, assessed alongside assets in the jurisdiction and protections already in place ([14]-[21]). It does not say that local property or an undertaking will always defeat an application for security. Nor does it establish that foreign residence is irrelevant. McHugh JA expressly rejected the appellant’s submission that it was wholly neutral, while finding its force substantially reduced in the particular circumstances ([14]).
The reasons refer to Fleming v Marshall [2010] NSWCA 152, Preston v Harbour Pacific Underwriting Management Pty Ltd, and PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321. The judgment uses PS Chellaram for the concern where a party is resident outside the jurisdiction and has no assets within it ([14]). It refers to Fleming in discussing the possible relevance of the special rule in the Court of Appeal ([10]). The reasons contain a citation inconsistency for Preston: paragraph [10] gives [2007] NSWCA 247, while the supplied case list gives [2007] NSWCA 24. The judgment cites it in connection with the special-circumstances discussion. The source text does not support a conclusion that this ruling altered or displaced those authorities.
At [14], the Court described the primary concern about foreign residence as the risk that, when combined with an absence of local assets, it could deprive a successful respondent of the benefit of a costs order. In plain English, living overseas mattered because of its possible effect on enforcement, not as a stand-alone reason that necessarily required security.
At [16], the Court said it was incorrect to describe Bo as having “limited real property assets in New South Wales”, given the substantial value and lack of mortgage over the Macquarie Park property. This was an assessment of the evidence in this application, including the absence of evidence of substantial unsecured third-party claims against the asset.
At [20]-[21], the Court explained that the undertaking would preserve the equity “headroom” pending the appeal and was a powerful reason to conclude that Costi Cohen was adequately protected. In plain English, the undertaking gave the respondent assurance that the asset relied on as a source of recovery would not be sold or further encumbered while the appeal was pending.
At [33], the Court stated, “convenience is not the criterion.” It accepted that money paid into Court might make recovery more straightforward, but did not treat that convenience as enough to justify security where the respondent was unlikely to be prejudiced by the appellant’s foreign residence.
At [38], the Court rejected the stay application because there was no cited authority and no developed explanation of the alleged abuse of process. In plain English, non-payment of an amount ordered below did not by itself explain why continuing the appeal would amount to abuse.
The ruling is most directly relevant to an application for security for appeal costs where the appellant is ordinarily resident outside Australia and the application relies on UCPR r 42.21(1)(a). It shows that the court may examine whether the asserted enforcement concern is reduced by assets in New South Wales and by measures that preserve those assets while the appeal continues ([14]-[21], [31]-[34]).
The particular combination here was significant: substantial equity in registered, unencumbered local property; an existing freezing order; no evidence of substantial unsecured third-party liabilities; and an undertaking not to dispose of or further encumber the property pending the appeal ([16]-[20]). The ruling also involved evidence of non-payment of an interest amount and a Sheriff’s Notice of Non Levy, but the Court found those matters insufficiently connected to a real risk of non-recovery on the evidence presented ([23]-[25]).
The judgment does not establish that an undertaking will invariably substitute for security, that property value alone will always be sufficient, or that a freezing order removes every enforcement concern. Its reasoning depended on the particular evidence and the combination of protections. It also does not decide the special-circumstances issue, because that point was unnecessary to the result ([10]-[11]).
The supplied judgment contains no account of later judicial treatment of Bo v Costi Cohen Pty Ltd. It was decided on 23 February 2026, and the source text provides no subsequent cases applying, distinguishing, following or questioning it. It would therefore be unsupported to describe how later courts have treated the decision.
Within this judgment, the earlier authorities are used for limited purposes. PS Chellaram is referred to for the concern associated with foreign residence combined with no assets in the jurisdiction ([14]). Fleming is quoted in connection with the possible discretionary relevance of the special security rule ([10]). Preston is mentioned in the same discussion, although the supplied text gives inconsistent medium neutral citations for it. The judgment does not set out a comprehensive treatment of those cases.
The principal expressly unresolved question is whether an application under UCPR r 42.21 in the Court of Appeal is subject to the special-circumstances requirement in r 51.50(1). McHugh JA considered that the rules appeared to confer independent powers, but left the issue undecided because the parties accepted that the r 42.21(1)(a) criterion was engaged ([10]-[11]).
The judgment also does not determine the circumstances in which a local asset, a freezing order or an undertaking would be inadequate protection. It finds these factors sufficient in combination on this record, while acknowledging that they did not make enforcement as straightforward as money paid into Court ([20]-[21], [33]-[34]). Different evidence about the value, ownership, encumbrances, competing liabilities or continued availability of an asset could raise different issues, but the judgment does not prescribe how those matters would be resolved.
The reasons briefly note that bankruptcy proceedings were mentioned at the hearing, but neither party made an affirmative submission about the likely operation of s 43(1) of the Bankruptcy Act 1966 (Cth) ([22]). The Court therefore did not decide how that provision might apply to a costs order against an appellant resident overseas.
Finally, the Court did not assess the merits of the appeal, beyond recording the respondent’s concession that there were arguable grounds ([29]). It also did not determine the proper amount of security, because it was unnecessary once the application was dismissed. The Court observed that $76,980 appeared high in light of the amount in issue and the appeal’s complexity, but did not make an order fixing a lower amount ([36]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bo v Costi Cohen Pty Ltd [2026] NSWCA 14
Hearing dates: 23 February 2026
Date of orders: 23 February 2026
Decision date: 23 February 2026
Before: McHugh JA
Decision: (1) Upon the appellant by its counsel undertaking to the Court until further order of the Court:
(a) not to dispose of the property at Unit 1106, 2 Saunders Close, Macquarie Park NSW 2113 (being lot 118 in strata plan 89124) or diminish its available equity through any secured lending or other encumbrance pending the appeal; and
(b) to otherwise prosecute the appeal in a timely fashion,
the respondent’s notice of motion filed on 10 February 2026 is dismissed.
(2) The costs of the notice of motion be costs in the cause.
Catchwords: COSTS — Security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 42.21 — Where appellant is a natural person ordinarily resident outside Australia
Legislation Cited: Bankruptcy Act 1966 (Cth), s 43
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.1, 51.50
Cases Cited: Costi Cohen Pty Ltd v Bo [2025] NSWDC 356
Fleming v Marshall [2010] NSWCA 152
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 24
PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321
Category: Procedural rulings
Parties: Yin Bo (Appellant)
Costi Cohen Pty Ltd ACN 639 215 633 (Respondent)
Representation: Counsel:
A B Emmerson (Appellant)
P Folino-Gallo (Respondent)
Solicitors:
MLH Lawyers (Appellant)
Hitch (Respondent)
File Number(s): 2025/00390216
Publication restriction: N/A
By notice of motion filed on 10 February 2026, the respondent seeks, in summary, orders (1) that the appellant provide security for the respondent’s costs in the sum of $76,980 and (2) that the proceedings be stayed until payment is made by the appellant to the respondent in the sum of $17,137.94.
As to the first order, the respondent relies on Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.21 — particularly subr (1)(a): that the appellant is ordinarily resident outside Australia. As to the second order, which was only faintly pressed, the respondent relies on the Court’s inherent jurisdiction.
The appellant is a natural person who, it appears, is a resident of China. The respondent is a corporation.
The proceedings below were brought by the respondent against the appellant in the District Court of New South Wales: Costi Cohen Pty Ltd v Bo [2025] NSWDC 356. The respondent claimed damages for breach of an alleged agency agreement between the parties (the alleged breach being the appellant’s failure to pay a commission). The respondent also brought an alternative claim in quantum meruit. The appellant actively defended the proceedings, filing an amended defence and cross-claim.
After a hearing over three days, the primary judge, Habib SC DCJ, found in favour of the respondent. On 26 September 2025, his Honour gave judgment against the appellant on the quantum meruit claim in the amount of $166,100, and ordered the appellant to pay the respondent interest in the amount of $17,137.94. His Honour also ordered that the appellant pay the respondent’s costs (which have not yet been agreed or assessed).
On 26 September 2025 the primary judge also continued, until further order, freezing orders that had been made against the appellant before the hearing. Those orders prevented the appellant from in any way disposing of, dealing with or diminishing the value of any of his assets in Australia up to a value of $250,000. Those orders specifically identified a property at Macquarie Park in New South Wales. The evidence on the present application indicates that that property is worth at least in the order of $900,000; that the appellant is the registered proprietor; and that the property is unencumbered by any mortgage (whether registered or unregistered).
The freezing orders had been varied in order to permit the appellant to complete the sale of the Macquarie Park property under a contract for sale dated 26 August 2024 for a sale price of $1,250,000. However, the contract for sale was terminated, and the uncontradicted evidence is that the appellant has not sought to sell that property since the termination of the contract on 3 October 2025.
Rule 51.50(1), which addresses security for costs in the Court of Appeal, provides: “In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal.” Subrule (2) provides: “Subject to subrules (1) and (3), no security for costs of an appeal is to be required.” However, r 51.50(3) provides that subrr (1) and (2) “do not affect the powers of the Court under rule 42.21”.
Rule 42.21 confers the Court’s general power to award security for costs under the rules. It applies to proceedings assigned to the Court of Appeal by reason of r 51.1(3), subject to the terminological modifications required by r 51.1(4).
The respondent’s written submissions (at par 11) appeared to assume that the power in r 42.21 is subject to the requirement of special circumstances (as did the appellant’s written submissions at par 6). The respondent departed from that assumption in oral submissions; the appellant adhered to it (although perhaps faintly). The assumption may be doubted. On their face, the two rules provide independent powers to award security for costs: one where there are “special circumstances” (as to which, see Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247); the other where one or more of the criteria in r 42.21(1) are engaged. Since r 51.50(1) and (2) “do not affect the powers of the Court under rule 42.21”, it is difficult to see how a requirement of special circumstances could be a condition of the engagement of the powers under r 42.21. Nevertheless, as Handley AJA said in Fleming v Marshall [2010] NSWCA 152, “Although Pt 42 r 21 is applicable as a matter of power it is arguably relevant to the exercise of that discretion that the special rule in this Court does not apply to an application for leave to appeal and that power is only exercisable in special circumstances.”
It is unnecessary in this case to decide whether a requirement of special circumstances applies in the Court of Appeal where r 42.21 is invoked. That is because the appellant not only conceded that, as a matter of fact, he is ordinarily resident outside Australia (which was established by the evidence on the application), but also accepted that, as a matter of law, the power in r 42.21(1)(a) is engaged. (However, as will be seen, as to discretion, the appellant submits that “foreign residency” is “a neutral factor”, for the reasons discussed below).
The respondent relies on four grounds in support of its application for security for costs.
The first is the fact that the appellant is ordinarily resident outside Australia. (The respondent submits that once the power in r 42.21(1)(a) is enlivened “the burden falls on [the appellant] to demonstrate why security should not be ordered.” To the extent that the word “burden” is intended to convey a legal onus, this submission should not be accepted. The fact that the power is engaged does not operate to impose a legal onus on the appellant to demonstrate that security should not be ordered.)
Secondly, the respondent submits that the appellant has “limited real property assets in New South Wales”.
Thirdly, the respondent complains that the appellant has not paid the interest amount of $17,137.94 ordered by the primary judge on 26 September 2025.
Fourthly, the respondent says that when it attempted to enforce the judgment below (which has not been stayed) by way of a Writ for Levy of Property at the property at Macquarie Park, the New South Wales Sheriff’s Office returned a Notice of Non Levy.
The appellant’s submissions seek to put the matters on which the respondent relies in context, and advance countervailing considerations militating against an order for security.
First, although I do not accept that foreign residency is, as the appellant submits, a wholly “neutral factor”, its force is very much reduced in the present case. The primary concern about foreign residency is that it may, when combined with an absence of assets in the jurisdiction (see e.g. McHugh J’s well-known statement in PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321 at 323 about a party who “is resident out of the jurisdiction and has no assets within the jurisdiction”), have the practical effect of depriving a successful respondent of the benefit of an order for the costs of the appeal. Where the appellant is a foreign resident, security for costs is designed to give protection against the costs, delay and risks that a successful respondent might otherwise face in attempting to enforce a costs judgment in a foreign jurisdiction. There are strong reasons to doubt that the appellant’s foreign residency gives rise to any substantial concern of that kind in this case. Enforcement of any costs order in favour of the respondent is likely to take place in New South Wales, notwithstanding the appellant’s foreign residency.
Far from being a litigant with no connection to this jurisdiction, the appellant points out that he has held a visa as a permanent resident of Australia since 16 May 2025. It is also relevant that it was the respondent which commenced the proceeding against the appellant, apparently knowing that he was ordinarily resident in China. The statement of claim identifies as the appellant’s address an address in China. The respondent does not appear to have been concerned that the fact of the appellant’s residence in China would deprive it of the fruits of a judgment — no doubt because of the reason identified in the next paragraph.
The evidence indicates that the appellant has equity of at least $900,000 in the property at Macquarie Park in New South Wales. It is incorrect to describe that as “limited real property assets in New South Wales”. The Macquarie Park property is a substantial asset worth several times the amount at issue in the litigation. It is unencumbered by any mortgage. Nor has the respondent put before the Court any evidence to suggest that the appellant has any substantial unsecured liabilities to third parties which might be sought to be enforced by some means against the Macquarie Park asset to the respondent’s prejudice.
The appellant submitted that even after allowing for the judgment debt, the interest on it, and the (as yet unquantified) costs order in favour of the respondent with respect to the costs below, there was likely to be “headroom” in the Macquarie Park property of at least about $600,000, which would be available to satisfy any costs order in this Court.
It is relevant in this respect that the respondent has the benefit of an extant freezing order over the Macquarie Park property up to the value of $250,000. That order gives the respondent a degree of practical protection. But the respondent submitted that the combined effect of the judgment debt, the interest, and the costs order below would likely be to exhaust the $250,000 figure. The respondent’s concern is that there is no guarantee that any “headroom” in the asset will continue to be available to satisfy a costs order in this Court.
“The appellant undertakes to the Court until further order of the Court:
(a) not to dispose of the property at Unit 1106, 2 Saunders Close, Macquarie Park NSW 2113 (being lot 118 in strata plan 89124) or diminish its available equity through any secured lending or other encumbrance pending the appeal; and
(b) to otherwise prosecute the appeal in a timely fashion.”
The respondent submitted that the Court should not accept that undertaking, given that the appellant has not complied with the order to pay interest (discussed below). I do not agree. The effect of the appellant’s undertaking will be to preserve the “headroom” in the Macquarie Park property pending the outcome of the appeal.
That is a powerful reason for concluding that the respondent is adequately protected in respect of enforcing an order for the costs of the appeal.
It should be noted that there was a very brief discussion at the hearing of the notice of motion of the question whether proceedings in bankruptcy could be brought against the appellant, notwithstanding his foreign residency, if he failed to pay any order for the costs of the appeal. But neither party made any affirmative submission about the likely operation of s 43(1) of the Bankruptcy Act 1966 (Cth) (which provides for the circumstances in which the Court may make a sequestration order on a petition presented by a creditor) in that situation.
The appellant disputes the relevance of his failure to pay the interest amount — some $17,137.94. The respondent’s point is that, as a matter of form, the appellant is subject to an order to pay the interest amount, yet has not done so. The appellant’s explanation for not paying the interest appears to be (1) that despite its form as an order, the interest should properly be seen as forming part of the judgment debt (which the respondent is actively seeking to enforce); and (2) that no interest will be payable if the appellant succeeds in his appeal.
The respondent acknowledges that the interest amount is in substance part of the judgment debt. In the circumstances, it is not clear why, as a matter of substance, the appellant’s failure to pay the interest amount constitutes an additional reason for granting security. The appellant’s failure to pay the interest does not appear appreciably to increase the risk that any costs order in favour of the respondent will not ultimately be satisfied.
The appellant relies on the following further considerations in answer to the application.
First, that there is no real suggestion that the appellant is impecunious. So much may be accepted. On the other hand, on the assumption that the appellant is not unable to pay the judgment debt, it appears that his failure to do so may be explained only by unwillingness. In other words, there is a risk that the appellant will pay only if compelled to do so.
Secondly, that the appellant is a natural person. Again, so much may be accepted. But rule 42.21(1)(a) clearly contemplates that security may be ordered against a natural person who is resident outside Australia. Here, the appellant does not point to any particular hardship, much less does he suggest that his appeal would be stultified, if security were awarded.
Thirdly, that the appeal enjoys reasonable prospects of success. That there are arguable grounds of appeal was conceded by the respondent. Beyond that, it is not the Court’s function on the present application to form a view about the prospects of the appeal.
Fourthly, the appellant submits that the evidence given by the respondent’s solicitor as to the costs and expenses incurred in the proceedings below is irrelevant to the present application. That is not necessarily so, given the existence of a freezing order capped at $250,000. But in circumstances where the costs below have not been the subject of any costs assessment; and where they appear, to put it neutrally, large relative to the amount claimed below (costs of $230,143.04 on a claim for $166,100); and in particular in light of the undertaking proffered by the appellant, this is a factor to be given little weight.
I am not persuaded that this is an appropriate case in which to order security for costs.
That is principally because of a combination of the appellant’s equity in the unencumbered Macquarie Park property; the freezing order; and the undertaking proffered by the appellant. Together, those matters substantially answer the principal ground upon which security is sought, namely residence outside the jurisdiction.
It is true that those matters do not make the recovery of a costs order as straightforward as would be the case if money had been paid into Court by way of security. But convenience is not the criterion. A respondent faced with an appellant ordinarily resident within New South Wales is not generally entitled to have the appellant pay money into Court by way of security for the respondent’s costs. The respondent is unlikely to be prejudiced by the appellant’s foreign residency. As noted above, enforcement of any costs order is likely to take place in New South Wales, notwithstanding the appellant’s foreign residency.
The freezing order has already represented a significant intrusion upon what would otherwise be the appellant’s right to deal with his own property. The order was made for the protection of the respondent. On balance, I consider that that protection, when coupled with the undertaking proffered to the Court, suffices.
The application for security should be dismissed.
It follows that there is no occasion to address the detail of the evidence concerning the quantum of security which had been sought. It suffices for present purposes to say that the amount claimed — $76,980 — appeared on its face high in light of the amount in issue and the complexity of the appeal. Had I been persuaded to order security, it would have been in a much lower sum.
Separately from the application for security for costs, the respondent also sought a stay of the appeal pending payment by the appellant of the interest sum, that is, $17,137.94. The only submission addressed to this question was made in writing as follows: “It would be fundamentally unjust to permit [the appellant] to prosecute his appeal while flouting his obligations under the 26 September orders. The Court’s broad inherent jurisdiction to stay proceedings to prevent an abuse of process provides a firm foundation for this relief.”
No rule of court or authority was cited. No argument was developed explaining the alleged abuse of process. It does not follow from whatever exposure to execution or other process the appellant may have as a result of non-compliance with an order to pay the interest amount that the prosecution of the appeal is an abuse of process. The application for a stay should be dismissed.
I order as follows:
Upon the appellant by its counsel undertaking to the Court until further order of the Court:
(a) not to dispose of the property at Unit 1106, 2 Saunders Close, Macquarie Park NSW 2113 (being lot 118 in strata plan 89124) or diminish its available equity through any secured lending or other encumbrance pending the appeal; and (b) to otherwise prosecute the appeal in a timely fashion,
the respondent’s notice of motion filed on 10 February 2026 is dismissed.
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23 February 2026 - Deleted words "Choose an item."
Bo
Costi Cohen Pty Ltd [2026] NSWCA 14
(1991) 102 ALR 321
The respondent’s notice of motion was dismissed on the appellant’s undertaking to preserve the Macquarie Park property’s available equity pending the appeal and to prosecute the appeal in a timely fashion. The costs of the notice of motion were ordered to be costs in the cause: [40].
At the hearing of the notice of motion, the appellant proffered the following undertaking to the Court: