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[2026] NSWCA 59
procedural. The appellant was ordered to provide $50,000 security for the respondents’ appeal costs by 5.00pm on 28 April 2026; the proceedings were stayed until security was provided, the freezing orders...
The Court ordered Mr Pamboris to provide $50,000 as security for the respondents’ appeal costs. It considered there was a real risk that he would not be able to meet a costs liability, and noted the substantial judgment debt, mortgages over property, the broad scope and apparent difficulties of the appeal grounds, and possible enforcement issues. There was no evidence that requiring security would prevent the appeal from proceeding. The appeal was stayed until payment, and the existing freezing orders were adjusted so the payment could be made.
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1,890 words · generated 08/10/2026
This was an interlocutory decision about security for costs, not a decision determining the merits of Mr Pamboris’ appeal. Stern JA heard the liquidator and Portman Securities Pty Ltd’s motion for security for the costs they might incur responding to that appeal. The appeal from Black J’s judgment was listed for hearing on 26 to 28 May 2026 ([2]).
3 cited instruments linked from this judgment.
The first-instance proceedings concerned payments by Portman Securities to Waldron Projects Pty Ltd and a contract under which Portman Securities agreed to purchase a Punchbowl property from Westwood Capital Pty Ltd. The primary judge found that Mr Pamboris, who was the company’s sole director, breached director duties in causing payments of $3,225,297.01 to Waldron ([11]) and in causing the company to enter a property purchase contract it could not realistically complete ([13]). The primary judge also found the contract was an uncommercial and insolvent transaction under ss 588FB and 588FC of the Corporations Act 2001 (Cth), and made orders under s 588FF ([14]).
The primary judge’s orders included judgments against Mr Pamboris totalling $9,196,785.40 before costs, and findings concerning mortgages over his Paddington and Marrickville properties ([1]). The Court of Appeal proceeding was therefore an appeal following an adverse determination and a substantial judgment debt. Westwood had also appealed, and had separately consented to provide $60,000 security for its appeal ([4]).
The respondents sought $97,989.60, including GST, as security for the costs of the appeal ([3]). Mr Pamboris was notified of the motion and hearing, but did not file evidence or submissions and did not appear. Stern JA was satisfied he knew of the motion and proceeded in his absence ([5]-[7]). The orders ultimately required $50,000 to be paid into Court by 5.00pm on 28 April 2026. The appeal was stayed unless and until that security was provided, the freezing orders were varied to permit payment, and Mr Pamboris was ordered to pay the motion costs ([41]).
The Court applied UCPR r 51.50, which permits security to be ordered against an individual in “special circumstances” ([24]). It treated special circumstances as a necessary threshold, but not an automatic entitlement to an order. The relevant circumstances also informed the Court’s residual discretion ([25]).
The central financial consideration was the risk that assets would not be available to meet a costs liability if the appeal failed. Mr Pamboris’ affidavit from June 2025 listed real property valued at $5,940,000, cash and savings of $6,853, and liabilities estimated at $5,879,500, including a $5 million mortgage ([28]). Since then, the primary judge had entered judgment for $9,196,785.40 plus costs. Interest of $270,763.44 had accrued by 16 March 2026 and was accruing at about $68,000 per month ([29]). The judgment also notes that the respondents had no evidence about whether Westwood could meet its joint and several liability ([29]).
The Court considered that mortgages had been lodged over the Paddington and Marrickville properties shortly before an order requiring earlier mortgages to be discharged. The mortgagee company and Athenee Mortgages had the same sole director, secretary and shareholder, Ms Polias. The primary judge had found correspondence supporting the earlier mortgages to be “plainly false, at least in part” ([15], [30]). Stern JA did not finally determine the validity of the later mortgage. Rather, the Court observed that, whether or not it could ultimately be set aside, further expenditure would be required to challenge it ([31]). Taking the asset estimates, judgment debt, interest and mortgages together, the Court found a real risk that a costs liability would remain unpaid ([32]-[34]).
The appeal itself was relevant, but the Court did not decide whether it would succeed. It identified “significant hurdles” in the procedural fairness grounds, including the timing of the adjournment application, the earlier opportunities to file evidence, and Mr Pamboris’ absence from Australia at the time of trial ([19]). It considered the director-duty and transaction grounds to be broad challenges to findings of fact and characterisation, and noted that some grounds concerning dismissal of a cross-claim appeared to address a cross-claim Mr Pamboris had not made at first instance ([20]-[23]). These were interlocutory assessments of the grounds as presented, not final findings on appeal.
The Court also regarded the appeal’s breadth as relevant. The grounds effectively challenged the entirety of the primary judge’s findings against Mr Pamboris ([23]). It referred to Ballard v Brookfield Australia Investments Ltd, where the scope and cost of an extensive appeal had been treated as relevant to special circumstances ([36]). Stern JA additionally considered that Mr Pamboris appeared to be in the Philippines and that enforcement of a costs liability might be difficult ([37]).
Finally, there was no evidence that security would stultify the appeal ([38]). The Court’s discussion of Preston recognises that a bona fide, reasonably arguable appeal that would be stifled by security will usually not be stifled by an order ([24]). On the material before it, however, the Court found no evidence of that kind.
The judgment does not purport to change the legal test for security for costs. It applies the framework summarised from Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247. That framework requires special circumstances, does not permit a general rule to replace consideration of the case’s circumstances, and treats impecuniosity alone as usually insufficient ([24]).
The judgment also records two qualifications. First, special circumstances are necessary but may not be sufficient: the factors supporting that threshold can also matter to the Court’s broader discretion ([25], referring to Brown v King [2022] NSWCA 75). Second, an appeal differs from a claim at first instance because there has already been an adverse judicial determination. The judgment quotes Dye v Commonwealth Securities Limited [2012] FCA 992 on the potential unfairness where an appellant may be unable to meet the respondent’s costs if unsuccessful ([26]). That passage is part of the Court’s stated framework, not a rule that every unsuccessful party must provide security.
The decision’s contribution is therefore its application of established considerations to this record: the judgment debt and accruing interest, property encumbrances, apparent steps affecting creditor access to assets, the appeal’s scope and apparent hurdles, enforcement concerns, and the absence of evidence of stultification. The outcome was a discretionary order for a reduced amount of security, not a new general rule about all individual appellants.
At [24], the Court reproduces the Preston principles. In plain English, the Court cannot order an individual to provide security merely because that person appears unable to pay. There must be special circumstances. A reasonably arguable appeal that would be prevented by the security order is a significant countervailing consideration.
At [28], Stern JA said there was “a real prospect that assets will not be available” to satisfy a costs liability if the appeal did not succeed. This explains why the Court focused on both the appellant’s financial position and whether assets might be available to creditors, rather than treating the existence of property as conclusive.
At [33], the Court concluded that the appellant was unlikely to meet both the judgment debt, including interest, and any appeal costs liability unless he succeeded in overturning the orders at least in part. This was a risk assessment supporting security, not a final decision about the validity of the mortgages or the appellant’s ultimate liability.
At [35], the Court states that the grounds faced “material hurdles”. The phrase describes the Court’s preliminary assessment for the security motion. It should not be read as deciding the appeal, which remained listed for hearing.
At [39]-[40], the Court declined to order the full $97,989.60 sought and fixed security at $50,000. It considered that the respondents’ appeal costs were likely to exceed $50,000, but selected that lower amount as appropriate on the motion.
At [41], the appeal was stayed unless and until security was provided. The freezing orders were adjusted so that payment of the security would be permitted. The order thus paired the security requirement with a specific exception to the asset restrictions.
This decision may be relevant where a respondent to an appeal seeks security from an individual under UCPR r 51.50 and can point to a combination of circumstances beyond impecuniosity alone. In this case, the Court relied on a substantial adverse judgment, significant accruing interest, an apparent shortfall between assets and liabilities, and a risk that property would not be available to meet costs ([28]-[34]).
The decision also illustrates the possible relevance of steps affecting asset availability. The Court considered the later mortgages and the circumstances surrounding them, while expressly noting that their validity might require further proceedings to determine ([30]-[34]). The significance was their contribution to the assessed risk and potential further costs, not a final ruling that the later mortgages were invalid.
Other potentially relevant features were the breadth of the proposed appeal and the apparent hurdles in the grounds ([19]-[23], [35]-[36]), the appellant’s apparent location outside Australia and possible enforcement difficulties ([37]), and the absence of evidence that security would stultify the appeal ([38]). The judgment does not say that any one of these matters automatically suffices. Its reasoning rests on their combined effect in the particular case.
This judgment contains no discussion of later decisions applying or distinguishing its own ruling. It was decided on 16 April 2026, and the text supplied provides no subsequent case history. Accordingly, no conclusion about later treatment can be drawn from this judgment alone.
The authorities it itself discusses are earlier authorities. Preston supplies the security-for-costs framework ([24]); Brown is cited for the relationship between special circumstances and residual discretion ([25]); Dye is quoted for the difference between security considerations at first instance and on appeal ([26]); and Ballard is relied on for the possible relevance of a broad, costly appeal ([36]). These citations show the foundation on which Stern JA reasoned in this motion, but they do not establish how later courts have treated Pamboris.
The appeal’s merits remained undecided. The Court identified hurdles in some grounds, but the judgment does not determine whether those grounds ultimately succeed ([19]-[23], [35]). Nor does it decide whether the later mortgages over the Paddington and Marrickville properties are valid or can be set aside. It notes that further expenditure may be required to resolve that question ([31]).
The evidence did not establish whether Westwood had funds to meet its joint and several liability ([29]). The judgment also does not explain the detailed calculation behind the respondents’ $97,989.60 estimate or provide a breakdown of why $50,000, rather than another figure, was selected. It records that the Court considered the higher amount unsupported as the amount to order, and that $50,000 was appropriate and likely below the respondents’ appeal costs ([39]-[40]).
More generally, the decision does not specify a formula for weighing the amount of a judgment debt, the possibility of asset recovery, appeal prospects, and potential stultification. It applies the established discretionary framework to the evidence before it. Any use of the decision in another matter would depend on that matter’s governing rules and evidence.
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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: Pamboris v Christopher Damien Darin in his capacity as liquidator of Portman Securities Pty Ltd (in liquidation) [2026] NSWCA 59
Hearing dates: 13 April 2026
Date of orders: 16 April 2026
Decision date: 16 April 2026
Before: Stern JA
Decision: (1) The appellant to provide security for the first and second respondent’s costs in these proceedings in the amount of $50,000.00, by way of payment into Court by 5.00pm on 28 April 2026 (Security).
(2) The proceedings be stayed unless and until the Security is provided.
(3) The freezing orders made by the Court against the appellant, Mr Pamboris, in proceeding 2024/00211886 on 4 June 2025 (as extended on 25 November 2025) be varied such that the exceptions in paragraph 10 to the orders be supplemented by adding a further sub-paragraph (e), so that order 10 reads: “This order does not prohibit you from: … (e) paying, or otherwise taking steps to provide out of your assets, security for the costs of the First and Second Plaintiffs (being the First and Second Respondents in proceeding 2025/00479386) in proceeding 2025/00479386, in the sum of $50,000.00”.
(4) The appellant pay the first and second respondent’s costs of the notice of motion filed 26 March 2026.
Catchwords: COSTS — Security for costs — pending appeal — whether special circumstances — where appellant wholly unsuccessful at first instance — where judgment debt entered and freezing orders made in proceedings below — where real prospect that assets will not be available to satisfy any costs liability made against appellant — where grounds of appeal face significant hurdles
Legislation Cited: Conveyancing Act 1919 (NSW), s 37A
Corporations Act 2001 (Cth), ss 588FB, 588FC, 588FE, 588FF
Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Cases Cited: Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
Brown v King [2022] NSWCA 75
Dye v Commonwealth Securities Limited [2012] FCA 992
In the matter of Portman Securities Pty Ltd (in liq) [2025] NSWSC 1338
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Category: Principal judgment
Parties: Mario Pamboris (Appellant / Respondent on the motion)
Christopher Damien Darin in his capacity as Liquidator of Portman Securities Pty Limited (in Liquidation) ACN 612 790 566 (First Respondent / First Applicant on the motion)
Portman Securities Pty Limited (in Liquidation) ACN 612 790 566 (Second Respondent / Second Applicant on the motion)
Representation: Counsel:
N Bailey (First and Second Respondents / Applicants on the motion)
Solicitors:
Maddocks (First and Second Respondents / Applicants on the motion)
File Number(s): 2025/00479386
Publication restriction: Nil
On 13 November 2025, Black J gave judgment against the appellant, Mario Pamboris (and also against Westwood Capital Pty Ltd (Westwood) and Athenee Mortgages Pty Ltd (Athenee Mortgages)), in a claim brought by the respondents, Christopher Damien Darin in his capacity as liquidator of Portman Securities Pty Ltd (in liquidation) (liquidator) and Portman Securities Pty Ltd (in liquidation) (company), and dismissed a cross-claim by Westwood: In the matter of Portman Securities Pty Ltd (in liq*)* [2025] NSWSC 1338. On 25 November 2025 his Honour made orders, including that Mr Pamboris pay the company $3,225,297.81 plus pre-judgment interest of $380,939.01, that Mr Pamboris and Westwood pay the company $5,000,000 plus pre-judgment interest of $590,548.58 (and that that liability be joint and several), that mortgages granted by Mr Pamboris to Athenee Mortgages over properties on Brown Street, Paddington (Paddington Property) and Livingstone Road, Marrickville (Marrickville Property) were void pursuant to s 37A of the Conveyancing Act 1919 (NSW) and that Athenee Mortgages provide a discharge of those mortgages within 21 days of the orders. Mr Pamboris and Westwood were to pay the liquidator and company’s costs of the proceedings.
Both Mr Pamboris and Westwood have filed notices of appeal against those orders. The appeal is listed for hearing on 26 to 28 May 2026 with a time estimate of three, or two plus, days.
By notice of motion filed 26 March 2026 the liquidator and the company seek an order that Mr Pamboris provide security for their costs of the appeal in the amount of $97,989.60 (incl GST), by way of payment into Court within 7 days, and that the proceedings be stayed unless and until that security is provided. In an affidavit sworn on 26 March 2026 and read on the motion, Danielle Funston, the solicitor on the record for the liquidator and the company, says that this is her estimate of the costs of the appeal which will be recoverable on assessment (reducing some items to reflect that Mr Pamboris and Westwood’s appeals will be heard together).
By consent, on 10 April 2026 I ordered that Westwood provide security for the costs of its appeal in the sum of $60,000.
An affidavit of Danielle Pettit affirmed 13 April 2026 was read on the motion. This discloses that on 27 March 2026 the motion and Ms Funston’s affidavit (together with exhibit DF-1) were served by email on Mr Hunt, then the solicitor on the record for Mr Pamboris (and identified as Mr Pamboris’ solicitor in the notice of appeal). On 30 March 2026 Ms Pettit sent an email to Mr Hunt, informing him that the motion had been listed before the Court of Appeal Registrar at 9:00am on 13 April 2026. On 31 March 2026 Ms Pettit sent a further email to Mr Hunt, attaching orders directing that the parties file and serve evidence and submissions on the motion by midday on 10 April 2026 and listing the motion for hearing on 13 April 2026. On 6 April 2026 Mr Hunt filed a notice of ceasing to act, stating that a notice of intention to file that notice was served on Mr Pamboris on 29 March 2026. That notice had the last known address of Mr Pamboris as the Paddington Property and also included two last known email addresses of Mr Pamboris. On 10 April 2026 Ms Pettit sent the liquidator and company’s written submissions to Mr Pamboris at the two email addresses in the notice of ceasing to act (and also at two further email addresses). That email stated that the motion was listed for hearing before me at 10:15am on 13 April 2026. An electronic read-receipt indicated that the email from Ms Pettit to Mr Pamboris was read on 10 April 2026 at 12:49pm (Canberra time).
In summary, the liquidator and company’s claims, upheld by the primary judge, arise from a contract entered into by the company to purchase a property at Punchbowl (Property) from Westwood, which the primary judge found was purchased at a substantial overvalue, and from a separate transaction that Mr Pamboris entered into with Waldron Projects Pty Ltd (Waldron).
At all relevant times Mr Pamboris was the sole director of both the company and Waldron. Bill Gertos was the director of Westwood. Mr Gertos’ wife, Susan Polias, was the director and sole shareholder of Athenee Mortgages and had been a director of several companies with Mr Gertos. Mr Gertos had employed Mr Pamboris until 2001 at an accounting practice William J Gertos & Co. Mr Pamboris was also contracted (through one of his companies) by Westwood to work on a development application for the Property.
Between December 2018 and December 2019 Mr Pamboris caused the company to pay $3,225,297.01 to Waldron. The company was not obliged to make those payments. Some of that money was used by Waldron to fund the costs of developing the Property and some of it was paid to Ms Polias. The primary judge found that Mr Pamboris breached his general law and statutory duties under ss 180 and 181 of the Corporations Act 2001 (Cth) in causing the company to make these payments and that the company was entitled to recover the amount of those payments against Mr Pamboris.
On 27 December 2019 Westwood entered into a contract to purchase the Property for $26,000,000 from the Croatian Club Ltd. Following a Deed of Variation, that purchase settled in August 2021.
On or about 26 March 2020 the company entered into a contract to purchase the Property from Westwood for $100,000,000. Under the contract, the company was required to, and did, pay a deposit of $5,000,000 to Westwood on 25 March 2020. The company was required to, but did not, pay a further tranche of deposit, in the sum of $5,000,000, by 30 September 2020. On 8 October 2020 Westwood terminated the contract on account of that breach. At the time it entered into the contract the company did not have sufficient funds to pay either this second tranche of the deposit or its liability for stamp duty under the contract and had no realistic basis to expect it could complete the purchase. The primary judge found that Mr Pamboris breached his general law and statutory duties in causing the company to enter into the contract and that the liquidator and the company were entitled to recover $5,000,000 compensation on this account (reflecting the sum paid on 25 March 2020).
The primary judge also found that the contract was an uncommercial transaction within the meaning of s 588FB, and an insolvent transaction under s 588FC, of the Corporations Act and that it caused the company to become insolvent. His Honour found that the transaction was voidable under s 588FE(3) and directed, under s 588FF(1)(a), that Mr Pamboris pay the company $5,000,000. His Honour also directed Westwood to pay the liquidator $5,000,000, made an order under s 588FF releasing and discharging any debt owed by the company to Westwood and dismissed Westwood’s cross-claim against the company for the balance of the deposit owing under the contract to purchase the Property.
- The primary judge erred in refusing the Appellant’s interlocutory application dated 31 October 2025 to vacate the hearing dates of 4 to 7 and 11 November 2025 and extend time for filing evidence, thereby denying the Appellant procedural fairness.
2. The refusal was a discretionary decision that miscarried under the principles in House v The King (1936) 55 CLR 499, as the primary judge:
(a) failed to give sufficient weight to the Appellant’s severe health conditions (including leukaemia diagnosed in December 2024, Crohn’s disease diagnosed in 2023, physical and mental deterioration, and suicidal thoughts) and family circumstances (including his mother’s dementia, his son’s school enrolment issues, and travel difficulties from the Philippines), as detailed in the affidavit of John Richard Paul Hunt sworn 31 October 2025;
(b) failed to properly balance the prejudice to the Appellant (inability to provide instructions, file evidence, attend trial, or defend the proceedings) against case management considerations under ss 56-60 of the Civil Procedure Act 2005 (NSW);
(c) mistook the facts or acted on a wrong principle by not accepting the affidavit evidence as sufficient to justify an adjournment on medical grounds, contrary to authorities such as Sali v SPC Ltd (1993) 67 ALJR 841 and International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, which emphasise the right to a reasonable opportunity to present one’s case.
3. As a result, the Appellant was unable to adduce evidence or participate meaningfully, leading to the uncontested acceptance of the Respondents’ case and dismissal of the Appellant’s cross-claim. This constituted a denial of natural justice or procedural fairness.
4. The primary judge erred in finding that the Appellant breached his director’s duties under ss 180 and 181 of the Corporations Act 2001 (Cth*)* by causing or allowing the Company to enter into the Contract for the purchase of the Property.
The primary judge:
(a) failed to properly consider objective factors that may have supported the commercial rationale for the transaction, including potential development or rezoning benefits to the Property, even on the existing evidence;
(b) erred in inferring breach without sufficient evidence of the Appellant’s specific knowledge, involvement, or failure to exercise reasonable care and diligence, particularly where the evidence focused primarily on the Second Respondent’s (Westwood’s) role;
(c) misapplied the business judgment rule under s 180(2) of the Corporations Act 2001 (Cth), to the extent that any informed decision-making could have been established had the Appellant been able to adduce evidence.
5. These findings were unsupported by the evidence or involved a misapplication of the principles in Vrisakis v Australian Securities Commission (1993) 9 WAR 395 and were unreasonable in the circumstances.
6. The primary judge erred in dismissing the Appellant’s cross-claim. The primary judge:
(a) failed to find, on the balance of probabilities under s 140 of the Evidence Act 1995 (NSW), that the Second Respondent (Westwood) contributed to the Company’s loss, including through potential misrepresentation of the Property’s value or pressure to enter the transaction, even on the uncontested record;
(b) erred in not applying principles of contribution or indemnity under s 1317H of the Corporations Act 2001 (Cth) or s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), overlooking potential joint liability.
7. The dismissal was premature and contrary to case management principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, particularly where the Appellant bore the onus but was unable to meet it due to the denial of procedural fairness.
8. The primary judge erred in finding that the Contract was a voidable transaction under ss 588FB (uncommercial transaction), 588FC (insolvent transaction), and 588FDA (unreasonable director-related transaction) of the Corporations Act 2001 (Cth), and in related findings under s 37A of the Conveyancing Act 1919 (NSW).
The primary judge:
(a) gave insufficient weight to potential benefits or detriments in the objective assessment under s 588FB, including any strategic value to the Property not fully addressed in the Respondents’ valuations;
(b) erred in determining the date of insolvency under s 588FC, where evidence of alternative funding or solvency may have been discounted without proper consideration;
(c) misapplied the criteria for unreasonable director-related transactions under s 588FDA and alienation of property under s 37A, particularly in inferring intent to defraud creditors without sufficient evidence.
9. These findings were erroneous in law or unreasonable on the evidence, contrary to authorities such as Capital Finance Australia Ltd v Tolcher (2007) 164 FCR 83 and Lewis v Doran (2005) 219 ALR 555, and indirectly undermined the Appellant’s defence against breach of duties.
Several observations should be made about these grounds of appeal.
First, Mr Pamboris was represented at the hearing before the primary judge by Mr Akinyemi, a solicitor. The application to vacate the hearing date was filed on the Friday before the Tuesday when the hearing was listed to commence, when the date for hearing had been known since 12 May 2025. The application was supported by an affidavit of Mr Hunt, Mr Pamboris’ solicitor, which stated that Mr Pamboris had told Mr Hunt that he was not in a state to appear by reason of his physical and mental health. Mr Akinyemi accepted before the primary judge that Mr Pamboris had been ordered on four occasions to file evidence, and had not done so. It was also apparent that Mr Pamboris was abroad at the date of the hearing and had been abroad since at least 10 October 2025. In these circumstances, it is apparent that there are significant hurdles standing in the way of grounds one to three succeeding.
Second, grounds four and five effectively challenge, in a largely unfocussed way, the entirety of the primary judge’s findings, both of fact and of breach, as to Mr Pamboris having breached his duties as a director in causing the company to enter into the contract to purchase the Property. To the extent that these grounds require that this Court uphold challenges of finding of fact made by the primary judge, who observed Mr Gertos being cross-examined, they face some material hurdles.
Third, grounds six and seven seek to identify error in the primary judge dismissing Mr Pamboris’ cross-claim, when he did not make a cross-claim in the proceedings before the primary judge.
Fourth, grounds eight and nine effectively challenge, again in a largely unfocussed way, the entirety of the primary judge’s findings, both of fact and of characterisation, under ss 588FB and 588FC of the Corporations Act and s 37A of the Conveyancing Act. Again, these grounds face some material hurdles.
Fifth, the grounds of appeal in effect thus challenge the entirety of the primary judge’s findings adverse to Mr Pamboris.
(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.
The existence of special circumstances is a necessary, but not necessarily sufficient, condition. Matters relied upon as special circumstances are likely also to weigh in favour of the residual discretion: Brown v King [2022] NSWCA 75 at [8]-[10] (Kirk JA).
As regards appeals, in Dye v Commonwealth Securities Limited [2012] FCA 992 at [28], Emmett J said:
While impecuniosity ought not to be a bar to a person prosecuting a reasonable claim at first instance, the position on appeal is fundamentally different. At the appellate level, there has already been a determination adverse to the person against whom security for costs is sought. If there is a substantial risk that, if successful, the respondent will be deprived of costs, that outcome would clearly be unjust. In a sense, it is giving to a person who has been on the receiving end of an adverse determination by the courts, a free hit at great cost to the other party in the appeal proceeding. It is against those principles that I shall consider the matters addressed by the parties.
I am satisfied that there are special circumstances and that I should exercise my discretion to make an order for security for costs against Mr Pamboris, in favour of the liquidator and the company, having regard to the following matters.
First, I am satisfied that there is a real prospect that assets will not be available to satisfy any costs liability of Mr Pamboris, in favour of the liquidator and the company, if the appeal does not succeed. In an affidavit sworn by Mr Pamboris on 24 June 2025, in compliance with the freezing orders, he set out that he had assets comprising real property valued at $5,940,000 and cash and savings amounting, in total, to $6,853. At that time he estimated that his liabilities, including the $5,000,000 mortgage over the Paddington Property and the Marrickville Property, were $5,879,500.
Since that date, Mr Pamboris has become subject to the orders of the primary judge, which include a judgment against him for $9,196,785.40 plus costs. There is no evidence before me as to whether or not Westwood has funds to meet its liability of $5,590,548.58 (which liability is joint and several with that of Mr Pamboris). Post-judgment interest of $270,763.44 had accrued on Mr Pamboris’ judgment debt as at 16 March 2026, and interest is accruing at the rate of approximately $68,000 per month.
On 15 December 2025, the day before the primary judge ordered that the mortgages over the Paddington and Marrickville Properties in favour of Athenee Mortgages had to be discharged, a company called Athenee Securities Australia Pty Ltd (Athenee Securities) lodged mortgages over the Paddington and Marrickville Properties. Ms Polias is the sole director, secretary and shareholder of both of these companies. It should also be noted that the primary judge observed that a letter of offer dated 31 January 2025 from Athenee Mortgages, which was not incorporated until 25 March 2025, described Athenee Mortgages as “a division of Athenee Securities” and was signed by Ms Polias. His Honour found that this correspondence was plainly false.
The position thus appears to be that, at present, there are mortgages of $5 million over the Paddington and Marrickville Properties. Whilst it may be that that mortgage can be set aside, that will require further expenditure by the liquidator and the company.
Ms Funston in her affidavit has had recourse to searches on www.domain.com.au and estimates that Mr Pamboris’ assets may now be worth $7,840,000.
Putting these matters together, it appears that (irrespective of whether the mortgage is ultimately found to be invalid) Mr Pamboris’ net asset position is such that it is unlikely that he will be able to meet any liability that he may have to pay the costs of the appeal unless he is successful in overturning the orders of Black J, at least in part, as he has insufficient funds to meet both his judgment debt (including interest thereon) and those costs. There is thus a real risk that any costs liability in favour of the liquidator and the company will remain unmet if an order for security is not made.
…Mr Ballard is seeking a rehearing on almost all the issues thrown up in the first instance hearing and hence the scope of the appeal will be extensive. Whether or not, as a matter of justice, Mr Ballard has a right to appeal “basically the entirety of the decision”, the fact that he is choosing to do so is something that in my view (having regard to the objective prospects of such an appeal and the enormous cost that has been incurred to date and will be incurred on the appeal) brings the present case squarely within the notion of “special circumstances”.
The scope of the appeal that Mr Ballard intends to bring is such that there must be a very real risk that costs will be unnecessarily incurred by the respondents to the appeal (in the sense that if the appeal were confined to more narrow grounds of appeal those costs would be minimised)...
Fifth, Mr Pamboris appears to be in the Philippines and it is not clear when, or if, he will return. This may lead to difficulties in enforcing any liability to pay costs.
A further factor that I have taken into account in determining whether I should exercise my discretion to order security is that Mr Pamboris has not led any evidence suggesting that there is any risk that an order for security will stultify the appeal.
As already observed, the motion seeks an order that the sum of $97,989.60 (incl GST) be paid into Court as security for costs. That application was supported by a schedule of the actual and anticipated costs of the appeal, and by the opinion of Ms Funston, set out in her affidavit, that this is her estimate of the liquidator and company’s costs of the proceedings. I am not satisfied that that sum should be ordered. Rather, I consider that a sum of $50,000 should be ordered. I indicated my provisional view to this effect at the hearing and counsel for the liquidator and the company indicated that she did not have instructions to make any submissions against that sum being ordered.
In these circumstances, there is no need to say anything more than that I am satisfied that the liquidator and company’s costs of the appeal are likely to exceed $50,000 and that that is the appropriate sum to be paid into Court as security.
It is appropriate that some variation is made to the freezing orders to enable payment into Court of the amount ordered as security. Accordingly, my orders are:
The appellant to provide security for the first and second respondent’s costs in these proceedings in the amount of $50,000.00, by way of payment into Court by 5.00pm on 28 April 2026 (Security).
The proceedings be stayed unless and until the Security is provided.
The freezing orders made by the Court against the appellant, Mr Pamboris, in proceeding 2024/00211886 on 4 June 2025 (as extended on 25 November 2025) be varied such that the exceptions in paragraph 10 to the orders be supplemented by adding a further sub-paragraph (e), so that order 10 reads: “This order does not prohibit you from: … (e) paying, or otherwise taking steps to provide out of your assets, security for the costs of the First and Second Plaintiffs (being the First and Second Respondents in proceeding 2025/00479386) in proceeding 2025/00479386, in the sum of $50,000.00”.
The appellant pay the first and second respondent’s costs of the notice of motion filed 26 March 2026.
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Pamboris
Christopher Damien Darin in his capacity as liquidator of Portman Securities Pty Ltd
(1936) 55 CLR 499
(1993) 67 ALJR 841
(2009) 240 CLR 319
(1993) 9 WAR 395
(2009) 239 CLR 175
(2007) 164 FCR 83
(2005) 219 ALR 555
The appellant was ordered to provide $50,000 security for the respondents’ appeal costs by 5.00pm on 28 April 2026; the proceedings were stayed until security was provided, the freezing orders were varied to permit payment, and the appellant was ordered to pay the respondents’ costs of the motion.
Mr Pamboris has not responded to any of the correspondence set out above, nor has he filed any evidence or submissions on the motion. In circumstances where the correspondence was sent to Mr Hunt before the notice of ceasing to act was filed, I am satisfied that Mr Pamboris was aware of the motion, the evidence and submissions, and the hearing of the motion on 13 April 2026.
At the commencement of the hearing on 13 April 2026 my associate called the matter three times outside the Court. Mr Pamboris did not appear, whether by himself or by legal representative. Given the matters set out above, I proceeded to hear the motion in his absence.
For the reasons set out below, security for costs should be ordered in the sum of $50,000 and the proceedings stayed unless that security is provided by way of payment into the Court by 5:00pm on 28 April 2026. Freezing orders made by consent against Mr Pamboris on 4 June 2025 (freezing orders) should be varied to enable this to happen.
On 12 May 2025 Nixon J set the proceedings down for a hearing of five days commencing on 4 November 2025. The next day, 13 May 2025, Athenee Mortgages lodged mortgages over real property owned by Mr Pamboris, including over the Paddington and Marrickville Properties, described as being to secure the amount of $5,000,000 in favour of Athenee Mortgages. The primary judge found that Mr Pamboris’ grant of those mortgages to Athenee Mortgages should be declared void pursuant to s 37A of the Conveyancing Act and that the correspondence that supported the mortgages was “plainly false, at least in part”. His Honour found that the transaction was entered into to prevent the Paddington and Marrickville Properties from being available to the liquidator and the company and other creditors, or to deter creditors from realising those properties and/or to reduce the amount available to creditors of Mr Pamboris.
As already noted, on 4 June 2025, by consent, the freezing orders were made in respect of the assets of Mr Pamboris.
Second, the granting of the mortgages referred to at [30] above suggests that Mr Pamboris has taken steps to put his assets out of the reach of creditors, including the liquidator and the company.
Third, as already discussed, the grounds of appeal face material hurdles.
Fourth, the grounds of appeal are broad ranging, effectively challenging the entirety of the primary judge’s findings against Mr Pamboris. As to the relevance of the scope of an appeal, in Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 Ward JA held that (at [27]-[28]):