//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 19
procedural. The notice of motion filed on 20 February 2026 was dismissed, with costs.
The Court of Appeal refused the respondent's late application to make the appellant provide security for appeal costs. It accepted that the appellant had limited means and that a significant security payment would stop the appeal proceeding. The Court was not prepared, at this interlocutory stage, to say the appeal had no real prospects, and it considered the delay in bringing the motion inadequately explained. The ruling concerns security only, not whether the appeal or the fresh-evidence application will succeed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,889 words · generated 08/10/2026
Griffiths AJA decided an interlocutory motion about security for costs, not the appeal itself. The respondent to the appeal, Maria Ioannidis, sought an order requiring the appellant, Melissa Carretero, to provide security for the respondent’s costs of the appeal. The motion was filed on 20 February 2026, and the appeal was listed for hearing on 24 March 2026, about three weeks later ([1]).
10 cited instruments linked from this judgment.
The appeal followed a District Court judgment delivered on 15 July 2025. Ms Ioannidis had obtained damages of $101,788.63, plus an order for costs, for injuries arising from a dog attack on 24 April 2020 ([2]). Her claim included physical and psychological injuries, with $35,000 awarded for past and future economic loss ([3]).
Ms Carretero’s notice of appeal raised seven grounds, including alleged errors about psychological incapacity, causation, earning capacity, damages, the weight of the evidence and credibility. She also sought leave to rely on fresh evidence said to bear on Ms Ioannidis’ work capacity and psychological condition ([4], [21]–[25]). None of the grounds challenged the finding of liability. Ms Ioannidis relied on that point in arguing that the appeal had poor prospects, because liability would remain even if the appeal succeeded on damages ([9]).
The motion was dismissed with costs ([29]). The Court did not decide whether the appeal would succeed, whether the fresh evidence would be admitted, or what the final damages outcome should be.
The Court separated the analysis into two stages. First, the applicant had to establish “special circumstances” under the appeal-security provision identified in the judgment. Second, if that threshold was met, the Court had to consider whether security should be ordered in the exercise of its residual discretion ([5]–[8]).
The Court accepted that Ms Carretero was impecunious. Her affidavit strongly indicated that she would be unlikely to meet an adverse costs order and would not be able to meet security in the range sought, $80,000, or a significant alternative amount ([13]). The judge also found that an order for security in any significant amount would “invariably” stifle the appeal ([15]). Those financial circumstances were treated as a special circumstance, but they did not automatically require security to be ordered ([17]).
The appeal’s apparent merits mattered because the stultifying effect of an order is less influential if the appeal has no real prospects. The Court expressly declined to conclude that the grounds had no real prospects ([10]). It noted that the respondent had not challenged the prospects of success on damages beyond particular points and that ground 3, concerning work capacity, was “not beyond argument”, though described by respondent’s counsel as difficult ([9]–[10], [21]).
The fresh-evidence application was also relevant to the tentative assessment. It concerned social media and news publications which Ms Carretero said contradicted claims of incapacity. The respondent did not submit that this application was hopeless, although counsel intended to cross-examine Ms Carretero about the requirements for fresh evidence ([22]–[25]). The judge did not rule on admissibility. The assessment was provisional and could change after that cross-examination ([25]).
Timing was a further factor. The security motion was filed more than four months after the notice of appeal and around three weeks before the appeal hearing. The explanation referred to the Christmas vacation and the responsible solicitor’s return from leave on 12 January, but the judge considered it did not explain why the motion and supporting affidavit were not filed until 20 February ([26]). The judgment states that delay is relevant to the discretion, referring to Boensch v Transport for NSW [2024] NSWCA 86 at [37] ([27]).
Taken together, the accepted risk that security would stop the appeal, the Court’s tentative view that the appeal was not without real prospects, and the inadequately explained delay weighed against an order. The motion was therefore dismissed ([18]–[20], [26]–[29]).
The judgment presents its approach as an application of established principles, not as a change to the law. It draws on Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18], which sets out considerations including the need for special circumstances, the insufficiency usually of impecuniosity alone, the relevance of a hopeless or harassing appeal, and the usual reluctance to stifle a bona fide and reasonably arguable appeal ([5], [18]).
It also relies on Brown v King [2022] NSWCA 75. As summarised by Griffiths AJA, special circumstances are necessary but not necessarily sufficient. Matters supporting special circumstances may favour security, while other matters may still lead the Court to decline an order in the residual discretion, including the risk of unduly stifling an appeal ([6]–[7]).
The judgment applies these principles to the particular combination of circumstances before it. Impecuniosity was accepted as a special circumstance, but the Court separately considered whether the consequences of security, the arguability of the appeal and the timing of the application justified exercising the discretion in the applicant’s favour ([13]–[20], [26]–[29]). It does not state that impecuniosity always defeats a security motion, or that delay alone prevents an order.
There is an apparent cross-reference inconsistency in the judgment’s account of the rules. Paragraph 1 describes the motion as relying on r 42.21 and r 51.50 UCPR, while paragraph 5 identifies the more specific appeal provision as r 50.50(1). The judgment’s introductory legislation list refers to rr 50.50 and 51.30. This analysis reports the inconsistency rather than resolving it, since the judgment does not explain it.
At [10], the judge said: “I cannot conclude that the grounds of appeal do not have real prospects of success.” In plain English, the judge was not deciding that the appeal would succeed. The point was narrower: the available material did not justify treating the appeal as having no real prospects for the purpose of deciding whether to require security.
At [15], the judge accepted that Ms Carretero was impecunious and that significant security “invariably would stifle the appeal”. This means the Court accepted that the practical effect of a substantial security order would be to prevent the appeal from continuing. The finding was based on the evidence then before the Court and concerned the likely effect of the order.
At [17], the judge said the appellant’s financial circumstances constituted a special circumstance, but also indicated that impecuniosity remained relevant to the residual discretion. The distinction matters: satisfying the threshold did not make the order automatic. The Court still had to weigh whether security was appropriate.
At [26], the judge was “not convinced that any satisfactory explanation” had been offered for the delay. The motion came more than four months after the appeal notice and close to the hearing. The judge considered that the explanation about leave and the Christmas period did not account for the time after the solicitor returned on 12 January.
At [29], the formal result was that the motion was dismissed with costs. That disposed of the security application only. It did not dispose of the appeal or the fresh-evidence motion.
The judgment is relevant to applications for security for costs of an appeal where the applicant relies on alleged special circumstances and the respondent to the motion says that security would prevent the appeal from proceeding. It is particularly instructive where the appellant’s financial evidence is accepted, the requested amount appears beyond their means, and the appeal has not been assessed as hopeless ([13]–[20]).
It also provides an example of a court considering the merits at a limited, provisional level. The judge reviewed the filed grounds and submissions but did not determine the appeal. The possibility that an appeal ground may be arguable can matter to the security discretion even where liability is not challenged and the appeal principally concerns damages ([9]–[12], [20]–[25]).
The decision also illustrates the relevance of the timing of the application. Here, the motion arrived more than four months after the appeal notice and close to the hearing, and the explanation did not satisfy the judge ([26]–[27]). The judgment does not establish a fixed deadline or say that a late application must always fail. It treats timing as one factor in the discretion.
The fact pattern should not be extended beyond what the judgment decides. It does not determine how much security would be appropriate in a different case, whether a particular appeal is bona fide, or whether fresh evidence meets the applicable requirements. Those questions depend on the material and procedural setting in the individual matter.
The judgment is dated 2 March 2026 and the supplied text contains no later judicial treatment of Carretero v Ioannidis. It therefore cannot establish whether subsequent courts have followed, distinguished, applied or questioned this decision.
The judgment itself explains how it uses earlier authorities. It adopts the principles from Preston concerning special circumstances and the stultifying effect of security ([5], [18]); relies on Brown on the distinction between the threshold and the residual discretion ([6]–[7], [14], [20]); cites P S Chellaram & Co Ltd v China Ocean Shipping Co for the need to consider all relevant matters ([7]); cites Transglobal Capital Pty Ltd v Yolarno Pty Ltd for the proposition that stultification is significant but not determinative ([19]); and refers to Boensch for the relevance of delay ([27]).
The separate District Court stay ruling in Ioannidis v Carretero [2025] NSWDC 258 is described as procedural background. Griffiths AJA noted that the primary judge had found at least two potential grounds which, if substantial, could affect the appeal outcome. That earlier assessment provided “some further limited support” for the Court of Appeal judge’s own tentative view; it was not a determination of the appeal merits ([11]–[12]).
The appeal’s merits remained unresolved. In particular, the Court did not decide whether the trial judge erred in assessing psychological incapacity, causation, earning capacity, damages, credibility or the weight of the evidence. Those matters were raised in the appeal grounds, but the security motion was not the proceeding in which they were finally determined ([4], [10]).
The fresh-evidence question also remained open. The materials described by Ms Carretero included social media and news publications said to show professional and social activity during the period of claimed incapacity. The Court noted that the evidence was available before trial but that Ms Carretero gave an explanation for not monitoring it then. The respondent intended to cross-examine her about the requirements for admission. The judgment did not decide whether the evidence was genuinely fresh, admissible, or likely to affect the appeal ([22]–[25]).
The judgment also leaves open how the procedural-rule cross-references should be reconciled. It refers to r 51.50 in [1], r 50.50(1) in [5], and rr 50.50 and 51.30 in the introductory legislation list. The decision does not address that apparent discrepancy.
Finally, while the Court referred to proportionality under s 60 of the Civil Procedure Act 2005 (NSW), including the submission that the appeal appeared directed in part to the $35,000 economic-loss component, it did not separately determine a proportionality test or quantify costs for a security order ([24]). The judgment’s operative outcome remains confined to dismissal of the motion with costs.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Carretero v Ioannidis [2026] NSWCA 19
Hearing dates: 2 March 2026
Date of orders: 2 March 2026
Decision date: 02 March 2026
Before: Griffiths AJA
Decision: 1. The notice of motion filed 20 February 2026 is dismissed, with costs.
Catchwords: COSTS — security for costs — special circumstances and residual discretion — impecuniosity — whether appeal has real prospects for success — unsatisfactory explanation as to delay where notice of motion filed three weeks before hearing
Legislation Cited: Civil Procedure Act 2005 (NSW), s 60
Companion Animals Act 1998 (NSW), s 25
Uniform Civil Procedure Rules 2005 (NSW), rr 50.50, 51.30
Cases Cited: Brown v King [2022] NSWCA 75
Ioannidis v Carretero [2025] NSWDC 258
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136
Boensch v Transport for NSW [2024] NSWCA 86
Texts Cited: Nil
Category: Procedural rulings
Parties: Melissa Carretero (Appellant)
Maria Ioannidis (Respondent)
Representation: Counsel:
M Carretero (Appellant, self-represented)
L D Robison (Respondent)
Solicitors:
Shine Lawyers (Applicant)
File Number(s): 2025/00319946
Publication restriction: Nil
By a notice of motion filed on 20 February 2026, the respondent in the appeal, Ms Maria Ioannidis, seeks an order that the appellant, Ms Melissa Carretero, provide security for costs pursuant to the general provision in r 42.21 and the more specific provision in r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The appeal is listed for hearing on 24 March 2026, which is only approximately three weeks away.
On 15 July 2025, Catsanos SC DCJ delivered final judgment in the District Court in Ms Ioannidis’ favour: see Ioannidis v Carretero [2025] NSWDC 258 (the primary judgment). Damages were awarded in the amount of $101,788.63. Ms Carretero was ordered to pay costs. The proceedings related to Ms Ioannidis’ claim for damages arising from an attack on 24 April 2020 by a dog owned by Ms Carretero.
Ms Ioannidis sought damages on the basis that she suffered bodily injury within the meaning of s 25(1)(a) of the Companion Animals Act 1998 (NSW). She claimed to have suffered both physical and psychological injuries as a result of the dog attack. The award for damages included a significant amount for past and future economic loss in the amount of $35,000.
By a notice of appeal filed 13 October 2025, Ms Carretero raises the following seven grounds of appeal:
1 The learned trial judge erred in accepting the Respondent's evidence of psychological incapacity without proper consideration of contradictory evidence, including contemporaneous records and the expert opinion of Dr Leonard Lee.
2 The learned trial judge erred in law in misapplying the principles of causation by treating all of the Respondent's psychiatric symptoms as caused by the dog attack, without evaluating other potential contributing causes as required by s 5D of the Civil Liability Act 2002 (NSW).
3 The learned trial judge erred in fact in finding that the Respondent had little or no earning capacity when the evidence—including business activity statements and expert opinion—demonstrated retained professional and functional capacity.
4 The learned trial judge's assessment of damages for both economic and non- economic loss was manifestly excessive and not supported by the evidence, given the Respondent's demonstrated physical activity, independence, and incomplete financial disclosure.
5 The judgment is unsafe and contrary to the weight of the evidence, in that key factual findings were inconsistent with the documentary and expert material before the Court.
6 Fresh evidence now available demonstrates that the Respondent misled the Court regarding her capacity to work and the severity of her psychological condition. This evidence, which could not reasonably have been obtained earlier, directly contradicts her sworn testimony and would likely have affected the result. Leave is sought to adduce this evidence under s 75A(7) of the Supreme Court Act 1970 (NSW).
7 The learned trial judge failed to adequately consider alternative and pre-existing causes of the Respondent's psychological condition, including the bereavement of her father and other life stressors, when assessing causation and quantum of damages.
(1) no order for security should be made in the absence of “special circumstances”;
(2) consideration of what may constitute special circumstances should not be fettered by some general rule of practice;
(3) impecuniosity, without more, will usually be insufficient;
(4) an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature;
(5) where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and
(6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.
As Kirk JA observed in Brown v King [2022] NSWCA 75 at [8], the existence of “special circumstances” is a necessary, but not necessarily sufficient, condition of the exercise of the power to order security for costs. The last two of the six matters described above may better be seen as guiding the exercise of the residual discretion, as opposed to the precondition of “special circumstances”.
All relevant matters should be taken into account in exercising the discretion where the precondition of “special circumstances” has been met (see PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 at 323; [1991] HCA 36). I also respectfully adopt what Kirk JA said in Brown v King at [10]:
Matters established to be “special circumstances” are likely to weigh in favour of the application when considering the exercise of the discretion. Matters militating against ordering security might not be relevant to assessing whether or not special circumstances exist, but will be taken into account in exercising the discretion. Thus, for example, special circumstances may be shown to exist but the Court might decline to order security because, for example, to do so would unduly stultify the appeal, taking account of the nature of the issues at stake ...
I shall first address whether Ms Ioannidis has established that there are “special circumstances” before turning to consider the residual discretion.
As to the condition for the need for special circumstances, the respondent (the applicant on the motion) primarily claimed that special circumstances existed here because of the alleged lack of merits of the appeal and also Ms Carretero's impecuniosity. As to the merits of the appeal, it was submitted by Mr Robison, who appeared for the respondent (the applicant on the motion), that the prospects of the appeal were poor, particularly in circumstances where liability was admitted at trial and none of the grounds of appeal challenges liability. Thus, whatever the outcome of the appeal, it is submitted that liability will stand.
While it is true that even if the appeal prevails liability will have been established, I note that Ms Ioannidis has not challenged the prospects of success affecting damages other than some matters that I will refer to below. It is not for me to express a concluded view at this time as to the merits of the appeal, but, having reviewed the relevant material, including the submissions which have been filed on behalf of both the appellant and the respondent (as settled by Mr Robison of counsel), I cannot conclude that the grounds of appeal do not have real prospects of success.
I also note that on 5 September 2025, Catsanos SC DCJ delivered separate reasons for judgment in respect of Ms Carretero's notice of motion filed below on 18 August 2025 seeking a stay of enforcement of the primary judgment pending the determination of the appeal. His Honour noted Ms Carretero then represented herself. She proposed to seek leave to adduce fresh or further evidence going to the issue of causation. His Honour was satisfied there were at least two potential grounds of appeal which, if of substance, could impact on the appeal's outcome.
His Honour concluded that the then potential appeal was not so lacking in merit as to deny a stay, assuming other relevant requirements were met. This conclusion and reasoning provide some further limited support for my own tentative assessment of the merits as matters stand at present, which now include the notice of appeal and the parties’ written submissions.
Let me turn to the issue of impecuniosity. The evidence regarding Ms Carretero's financial circumstances, including that contained in her affidavit filed 25 February 2026, strongly indicates that it is unlikely that she would be able to meet an adverse costs order if she was unsuccessful in her appeal. Similarly, the evidence strongly doubts her capacity to be able to meet an order for security of costs anywhere in the range presently sought by the respondent, being $80,000 or such other order that the Court might be persuaded to make.
As Kirk JA observed in Brown v King, impecuniosity, particularly when it manifests a strong likelihood of stifling the appeal, may be a special circumstance but it is not likely to be sufficient of itself to found an order for security. Mr Robison properly acknowledged in oral address that Ms Carretero is impecunious, notwithstanding that there seemed to be a suggestion in Ms Vella's affidavit filed on behalf of the respondent that an order for security would not stifle the appeal because Ms Carretero has not provided any evidence of inability to provide security nor has she sought to do so.
**********
Carretero
Ioannidis [2026] NSWCA 19
(1991) 102 ALR 321
(2004) 60 NSWLR 143
The notice of motion filed on 20 February 2026 was dismissed, with costs.
I respectfully do not accept that evidence, having regard to what is said in Ms Carretero's affidavit, perhaps significantly dated after Ms Vella's affidavit, (i.e. 25 February 2026). I accept the evidence given there that Ms Carretero is impecunious and I also find that if she was ordered to pay security in any significant amount, it invariably would stifle the appeal.
This also happens to coincide with what Catsanos SC DCJ previously found. His Honour said that it was not controversial that Ms Carretero was of limited means and that her debts appeared to well outweigh her assets. His Honour was satisfied that on the evidence before him at that point that if Ms Carretero succeeded in having the quantum of damages significantly reduced: "It may transform a situation of hopeless financial circumstances leading to bankruptcy to less straightened circumstances, leading to alternatives".
It was in those circumstances that his Honour granted the stay of the enforcement of the primary judgment. I am prepared to accept that the appellant's financial circumstances constitute a special circumstance which triggers the need to exercise the residual discretion in this case, but as will emerge, and as Mr Robison properly acknowledged, impecuniosity is also a relevant consideration in the exercise of the residual discretion.
Another factor which weighs heavily against ordering security is if the effect of such an order would be to stultify the appeal. As Basten JA noted in Preston at [18], “where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made”.
The matter is not determinative (see Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136), but it is a significant factor pointing against ordering security.
As Kirk JA pointed out in Brown v King at [54], even where the practical effect of ordering security is to bring the appeal to a halt, this will not be a strong factor if the appeal lacks real prospects of success. The difficulty facing Ms Ioannidis in this case, is that, for the reasons given above, I do not consider at this stage that the appeal lacks real prospects of success.
As Mr Robison again frankly and properly acknowledged, ground 3 of the seven grounds of appeal is not beyond argument even though it may present, to use his words, "a difficult ground". That ground relates to the issue of the respondent's capacity for work and is affected by the notice of motion filed by the appellant on 26 November 2025 seeking leave to adduce fresh or further evidence.
That notice of motion is listed to be heard concurrently with the appeal later this month. The fresh evidence relates to social media and other news publications which Ms Carretero claims demonstrate that the respondent was professionally and socially active throughout the period she claimed to be disabled by psychological injury. Ms Carreterro contends that the evidence contradicts the primary judge's findings regarding incapacity, causation and credibility. Ms Carretero has deposed in an affidavit dated 20 November 2025 in support of that notice of motion that although the so called fresh evidence was available prior to the trial (noting that most of it is dated in the period 13 June 2024 to 31 October 2024), she was not in a condition to monitor social media or news material during preparation for the trial because she was under medical and psychological instruction to disengage from proceedings in order to protect her health and pregnancy.
The respondent did not contend that the application to adduce fresh evidence was hopeless. Mr Robison did emphasise that he intended to cross-examine Ms Carretero relating to the requirements for fresh evidence to be admitted on an appeal.
The respondent also emphasised the importance of the Court bearing in mind the need for there to be a proportionality of costs as required by s 60 of the Civil Procedure Act 2005 (NSW) in circumstances where the gravamen of the appeal appears to be directed to reducing that part of the measure of damages amounting to $35,000 for past and future economic loss.
The notice of motion filed 26 November 2025 is listed to be heard on 24 March together with the appeal. I am not satisfied on the basis of the material before me that it is hopeless or doomed to fail. It may well be that an assessment even on a tentative basis of the sort that I am conducting now may change in the light of the foreshadowed cross‑examination but that remains to be seen.
Finally, and importantly to my mind, there is the issue of delay. The motion seeking security for costs was filed more than four months after the notice of appeal was filed and served. The appeal is listed for hearing in approximately three weeks. I am not convinced that any satisfactory explanation has been offered by the respondent for the delay in seeking security for costs. Mr Robison said that part of the reason may relate to the Christmas vacation period intervening. He said that the solicitor with responsibility for the matter did not return from leave until 12 January this year. Yet, it still took until 20 February for the notice of motion to be filed and for the supporting affidavit to be filed. This strikes me as deserving some explanation which has not been forthcoming.
It is well-established that delay is a relevant consideration in such a matter in the exercise of the Court's discretion (see, for example, Boensch v Transport for NSW [2024] NSWCA 86 at [37] per Leeming JA).
I should also state clearly that I do not accept that the issue of delay needs some adjustment in circumstances where Ms Carretero is a litigant in person as opposed to being legally represented and running up considerable legal expenses. It is very clear from the material before me, including the very lengthy written submissions which have been prepared by Ms Carretero totalling almost 160 paragraphs, that she has already invested considerable time and effort in her preparation for the appeal later this month.
For all these reasons, the respondent's notice of motion filed 20 February 2026 will be dismissed with costs.