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[2025] NSWCA 116
procedural. Security for costs of $60,000 was ordered in three instalments of $20,000, due by 4:00 pm on 16 June, 7 July, and 28 July 2025. The proceedings were stayed until the first instalment was provided....
2 cited instruments linked from this judgment.
The Court did not decide the appeal’s merits. It decided that the appellants had to provide $60,000 security for the respondent’s appeal costs, in three instalments. The appellants had proposed an additional undertaking tied to equity in a property, but the evidence did not adequately address concerns about costs, debts, mortgages, valuation, and a newly added joint tenant. Because the appellants had already had an opportunity to provide evidence and the appeal was approaching, the Court did not give them more time. The appeal proceedings were stayed until the first instalment was paid. The respondent’s request to have the appeal dismissed if security was not provided remained adjourned.
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2,046 words · generated 06/10/2026
Griffiths AJA dealt with a procedural motion for security for costs in an appeal that was listed to begin on 15 August 2025. The judgment says the parties did not dispute that security should be ordered. Their disagreement concerned the form the security should take ([2]).
The underlying appeal arose from a costs order made after a trial. On 23 July 2024, the primary judge entered judgment for the then defendant and ordered the then plaintiffs to pay the defendant’s trial costs. The respondent’s solicitor estimated those costs at $750,000 excluding GST. The judgment records that the costs had not yet been assessed or paid ([4]).
The appellants’ amended notice of appeal challenged both the primary orders and a later order refusing to vary the trial-costs order. That later decision is identified as Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 4) [2025] NSWSC 353 ([5]). The Court of Appeal’s decision did not determine any of those appeal grounds.
The respondent’s security motion had been filed on 28 November 2024. After the motion hearing was deferred pending the application to vary the costs order below, directions were made on 28 April 2025 requiring evidence and submissions on security by 23 May 2025. The appeal was then set down for hearing from 15 August 2025 ([5]).
The appellants proposed an additional undertaking to maintain at least $60,000 equity in a Surfers Paradise property. That would sit alongside an existing undertaking to maintain at least $500,000 equity in the same property, which had formed part of an earlier consent order about security in the proceedings below ([10]). The respondent opposed relying on the additional undertaking, raising concerns about the quality and completeness of the financial material ([11]).
The Court ordered $60,000 security, divided into three $20,000 instalments due on 16 June, 7 July, and 28 July 2025. The proceedings were stayed until the first payment was made. The request to dismiss the appeal if security was not provided was adjourned, rather than granted ([16]).
The Court’s central procedural reason was that the appellants had already had a proper opportunity to support their proposed undertaking with evidence. Directions required evidence by 23 May 2025, and the appellants relied on two affidavits, the second dated that day ([13]). Griffiths AJA concluded that the opportunity had been ample, but that the appellants had failed to provide sufficient evidence ([14]).
The respondent’s concerns were specific. The statement of Mr White’s assets and liabilities was not prepared or verified by an accountant. It did not account for the appellants’ liability for the trial costs, estimated at $750,000. The property valuation was $2.5 million, while Mr White’s liabilities were said to exceed $2.3 million. The material gave insufficient documentation about three mortgages, and the respondent had not been told that Ms Tracey Maree White had become a joint tenant. Her financial circumstances were unknown to the respondent ([11]).
Griffiths AJA said there was “considerable force” in those matters ([12]). The judgment therefore treats the proposed undertaking not as a sound alternative that was rejected for its form alone, but as an offer whose evidential foundation did not adequately answer the respondent’s concerns. The Court also noted that the appeal was due to commence in approximately nine weeks. In that setting, it considered the respondent justified in declining the additional undertaking ([14]).
Counsel for the appellants pointed to the burden of preparing appeal books and suggested that a different security order might affect that work. But counsel did not submit that the appeal would be stifled, and there was no evidence supporting such a claim ([15]). The Court’s reasoning on this point is limited: it records the absence of a substantiated stifling argument, rather than setting out a comprehensive test for when security may prevent an appeal from proceeding.
The Court ordered staged security, rather than a single payment. Its reasons do not separately explain why the particular instalment dates and amounts were selected. The operative orders establish the arrangement: three payments of $20,000, with the first payment a condition for lifting the stay ([16]).
This judgment is a procedural ruling on its particular evidence and timetable. It does not purport to restate the complete law governing security for costs, and it does not set out the detailed principles in the cited cases. At paragraph 8, the judgment records that the respondent accepted a need to demonstrate “special circumstances” as regards all three appellants, referring to Salmon v Albarran (No 2) [2024] NSWCA 99 at [14]. Paragraph 9 refers readers to Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151 at [38]-[48] and Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18] for relevant principles. The contents of those authorities are not reproduced in this judgment, so this decision alone does not provide their full tests or qualifications.
The statutory and procedural bases identified for the order were UCPR r 51.50(1), and, for the first and second appellants, s 1335 of the Corporations Act 2001 (Cth) ([16]). The motion was also brought by reference to UCPR r 42.21, as noted in the discussion of the parties’ positions ([8]). The Court’s orders include a potential dismissal mechanism under UCPR r 51.50(2A), but the Court adjourned the respondent’s application for dismissal rather than deciding it ([16]).
Accordingly, the “after” position established by this judgment is narrow and case-specific: the appellants were ordered to provide security in instalments; the proceedings were stayed pending the first payment; and the respondent retained the ability to seek an urgent hearing if a payment was missed. The judgment does not announce a general change to the law or say that property-based undertakings are necessarily inadequate. Its treatment turns on the evidence and procedural history before Griffiths AJA.
At paragraph 2, the Court says the dispute was not whether security should be ordered, but “the form that it should take”. In plain English, the motion concerned how the appellants would secure the respondent’s appeal costs, rather than whether any security was required.
At paragraph 11, the respondent set out five problems with the proposed undertaking. These included the absence of accountant preparation or verification for a financial statement, the omission of the estimated trial costs, the relationship between the property valuation and liabilities, limited mortgage information, and the newly added joint tenant. The Court later said those matters had “considerable force” ([12]). In practical terms, the record contained unresolved questions about how much equity was actually available and whose interests or finances affected it.
At paragraph 14, Griffiths AJA said the appellants had “ample opportunity” to provide evidence, but had failed to do so. This explains why the Court did not allow another evidence-gathering period. The decision does not say that further evidence can never be received on a security motion; it explains why further time was not allowed on this record and with the appeal approaching.
At paragraph 15, the Court notes that counsel did not claim the appeal would be stifled and that there was no evidence supporting such a claim. This means the asserted burden of preparing appeal books did not, on the material described, establish that the appeal could not proceed if security were ordered.
The orders at paragraph 16 give the practical result. Three $20,000 payments were due on specified dates. The appeal proceedings were stayed until the first payment. If the appellants missed a later payment, the respondent could approach the Registrar to seek directions for an urgent hearing about the adjourned dismissal application. That is not the same as an automatic dismissal order: the dismissal request remained to be heard.
The judgment is most directly relevant to a security-for-costs motion pending an appeal where the parties agree that security is appropriate but dispute its form. It addresses an offer of an undertaking connected to equity in property, supported by financial material that the respondent said was incomplete or insufficiently verified.
The factual features that mattered included a substantial unpaid trial-costs order, an estimate of those costs, sizeable liabilities compared with the property valuation, mortgages for which limited supporting documentation was supplied, and a change in joint ownership that had not been disclosed to the respondent ([4], [11]). The judgment also highlights the timing of the evidence: the parties had a court-directed deadline to file their evidence, and the appeal was approaching ([5], [13]-[14]).
The decision may be informative where a party asks for extra time to substantiate proposed security after a defined evidence deadline. Here, the Court relied on the opportunity already provided, the shortcomings in the material, and the approaching appeal hearing. It should not be read as establishing that every late request for further evidence must fail. Nor does the judgment establish that every undertaking secured against property will be rejected. The Court’s conclusion rests on the particular shortcomings recorded in the judgment.
The judgment also shows the relevance of a properly supported claim that security would stifle an appeal. Counsel raised the practical burden of preparing appeal books, but did not claim that the appeal would be stifled and supplied no evidence supporting that proposition ([15]). The decision therefore illustrates the evidentiary gap in this case, rather than resolving every circumstance in which an appeal may be affected by a security order.
The judgment supplied for analysis contains no discussion of any later court considering or applying this decision. It was delivered on 27 May 2025, and the material provided identifies no subsequent treatment. It is therefore not possible, from this source, to report whether a later court has followed, distinguished, or otherwise treated it.
The judgment itself refers to earlier authorities. It records the respondent’s reliance on Salmon v Albarran (No 2) [2024] NSWCA 99 at [14] concerning special circumstances, and points to Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151 at [38]-[48] and Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18] for relevant principles ([8]-[9]). It also refers to the two related Supreme Court decisions concerning the underlying costs dispute ([4]-[5]). Those references show the authorities Griffiths AJA identified in the context of the motion; they do not, by themselves, establish how later courts have treated the present judgment.
A complete account of subsequent treatment would require later judgments or another source recording citations to this decision. No such source is included here, so any claim about later judicial treatment would go beyond the available material.
The judgment does not set out the full legal tests under UCPR r 51.50, UCPR r 42.21, or Corporations Act s 1335. It records that the applicant accepted a special-circumstances requirement and identifies cases containing relevant principles, but does not reproduce those principles in detail ([8]-[9]). The scope and application of those tests therefore cannot be fully extracted from this judgment alone.
The decision also does not explain why the Court selected $60,000 as the total security amount, or why the amount was divided into three instalments of $20,000. The orders specify the amounts, dates, and permitted forms of payment, but the reasons do not provide a separate calculation or assessment of likely appeal costs ([16]).
The effect of the appeal ground challenging the refusal to vary the trial-costs order is also left unresolved. Counsel pointed out that the challenge could affect the $750,000 estimate of costs below ([12]). The Court acknowledged the point but still made the security order. The appeal itself, including the challenge to the costs order and the later refusal to vary it, was not decided in this motion.
Finally, the dismissal application remained adjourned. The judgment provides a procedural route for the respondent to seek urgent directions if any instalment was missed, but it does not decide whether a future failure to pay would result in dismissal. That would depend on the later hearing and any relevant material then before the Court ([16]).
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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: Victorian Xray Group (Dandenong) Pty Ltd v Malouf trading as Malouf Solicitors [2025] NSWCA 116
Hearing dates: 26 May 2025
Date of orders: 27 May 2025
Decision date: 27 May 2025
Before: Griffiths AJA
Decision: (1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 51.50(1) and, in the case of the first and second appellants, also under s 1335 of the Corporations Act 2001 (Cth):
(a) by 4:00pm on 16 June 2025 the appellants are to provide security in the sum of $20,000 towards the respondent’s costs of the appeal;
(b) by 4:00pm on 7 July 2025 the appellants are to provide security in the further sum of $20,000 towards the respondent’s costs of the appeal; and
(c) by 4:00pm on 28 July 2025 the appellants are to provide security in the further sum of $20,000 towards the respondent’s costs of the appeal,
these sums to be paid into Court or in such other form as the respondent may agree in writing before the relevant time expires.
(2) The proceedings be stayed until the appellants have provided security in accordance with Order (1)(a).
(3) The application by the respondent for orders that the appeal should be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 51.50(2A) if security has not been provided in accordance with Order (1) is adjourned.
(4) The respondent has leave to approach the Registrar if the appellants fail to make any of the payments specified in Order (1) within the times specified, with a view to the Registrar giving directions for there to be an urgent hearing concerning the adjourned application for orders dismissing the appeal.
(5) The appellants are to pay the respondent’s costs of the motion for security for costs filed on 28 November 2024.
Catchwords: COSTS — security for costs — pending appeal — where no dispute that security for costs should be ordered — where additional undertaking proffered by appellants — whether appellants should be afforded opportunity to file further evidence
Legislation Cited: Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50
Cases Cited: Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Salmon v Albarran (No 2) [2024] NSWCA 99
Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 3) [2024] NSWSC 888
Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 4) [2025] NSWSC 353
Texts Cited: Nil
Category: Procedural rulings
Parties: Victorian Xray Group (Dandenong) Pty Ltd (First Appellant / First Respondent to the motion)
Victorian Xray Group (Boronia) Pty Ltd (Second Appellant / Second Respondent to the motion)
Bevyn Thomas White (Third Appellant / Third Respondent to the motion)
Anthony Mark Malouf trading as Malouf Solicitors (Respondent / Applicant on the motion)
Representation: Counsel:
M Luitingh (Appellants / Respondents to the motion)
A Avery-Williams (Respondent / Applicant on the motion)
Solicitors:
Jane Button & Associates Pty Ltd (Appellants / Respondents to the motion)
Sparke Helmore (Respondent / Applicant on the motion)
File Number(s): 2024/302485
Publication restriction: Nil
By notice of motion filed on 28 November 2024, the respondent in the appeal seeks security for costs.
The appeal is listed to be heard on 15 August 2025. The contest between the parties relates not to the question whether there should be an order for security but rather relates to the form that it should take.
For the following reasons, the appellants should pay security for costs in three tranches in the total amount of $60,000.
The appeal relates to a judgment by Cavanagh J in Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 3) [2024] NSWSC 888. By orders dated 23 July 2024, judgment was given to the then defendant and the then plaintiffs were ordered to pay the defendant’s costs of the trial. According to an affidavit dated 28 November 2024 by the respondent's solicitor, Mr John Coorey, those costs are estimated to be $750,000 (excluding GST). The costs have not yet been assessed, nor paid.
On 16 August 2024, the respondents to the present motion filed a notice of intention to appeal, which was followed by a notice of appeal filed 22 October 2024. An amended notice of appeal was filed on 20 May 2025. It raises multiple grounds of appeal, not only in respect of the primary judge’s orders dated 23 July 2024, but also a subsequent order dated 14 April 2025, in which the primary judge dismissed the then plaintiffs’ application to vary the costs order relating to the trial (see Victorian X-Ray Group Pty Ltd v Malouf t/a Malouf Solicitors (No 4*)* [2025] NSWSC 353). The hearing of the notice of motion filed 28 November 2024 was deferred pending finalisation of the application below to vary the costs order. On 28 April 2025, the Registrar made orders setting down the appeal for hearing commencing 15 August 2025 and directing the parties to file and serve submissions and evidence in respect of the security for costs motion by 23 May 2025.
Presumably in response to those directions, the parties filed various affidavits. The applicant on the motion filed Mr Coorey’s affidavit referred to above, as well as an updated outline of written submissions filed 23 May 2025.
The respondents to the motion filed updated submissions on 23 May 2025, and also relied upon two affidavits, dated 13 December 2024 and 23 May 2025, by their instructing solicitor, Ms Jane Button.
The applicant on the motion acknowledged that, despite the fact that security for costs was sought under both r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) and r 42.21 as against each of the three appellants, and/or s 1335 of the Corporations Act 2001 (Cth) against the corporate appellants only (i.e. the first and second appellants), it needed to demonstrate “special circumstances” as regards all three of the appellants, citing Salmon v Albarran (No 2) [2024] NSWCA 99 at [14] per Stern JA.
The relevant principles concerning the requirement for special circumstances were described by Stern JA in Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151 at [38]-[48]. Reference was also made to Basten JA’s summary of the relevant principles (Ipp JA and Hoeben J agreeing) in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18].
Mr Luitingh, who appeared for the respondents to the motion, candidly accepted that the evidence provided to date by his clients was inadequate. His primary position was to seek further time to provide additional evidence which he contended could satisfy the applicant on the motion to accept the respondents’ offer to give an undertaking to maintain equity in a property at Surfers Paradise (Property) in the amount of $60,000 in addition to an existing undertaking to maintain an amount of equity of at least $500,000 in that same Property. The existing undertaking formed the basis for the consent order made in the proceedings below which settled an earlier dispute regarding security for costs.
Ms Avery-Williams, who appeared for the applicant on the motion, said that the proffered additional undertaking was inadequate. In particular, she submitted that the proffered undertaking was deficient in the following circumstances:
(a) a personal statement of Mr White’s assets and liabilities dated 5 May 2025 was not prepared by an accountant, nor verified by an accountant; (b) the statement did not take account of the appellants’ liability to pay the costs below, which are estimated to be in the amount of $750,000; (c) the valuation (dated 28 January 2025) valued the Property in the amount of $2.5 million, which gave the respondent little comfort in circumstances where Mr White’s liabilities were more than $2.3 million; (d) no sufficient documentation had been provided by the appellants regarding three mortgages now affecting the Property, apart from the limited information set out in the personal statement of assets and liabilities, which simply specified the amounts owing; and (e) the appellants had failed to disclose to the respondent the fact that, after acceptance of the earlier undertaking, Ms Tracey Maree White has been added as a joint tenant of the Property and nothing is known regarding her financial circumstances.
There is considerable force in each of those matters. This was effectively conceded by Mr Luitingh, apart from pointing out the appeal also included a challenge to the primary judge’s refusal to vary the costs order below, which could affect the $750,000 estimate on costs.
I shall now explain why I am not willing to give the appellants further time to provide evidence which might address these shortcomings. As noted above, directions were made on 28 April 2025 which required the parties to file updated submissions and any evidence concerning security for costs by 23 May 2025. The appellants relied on two affidavits, the second being dated 23 May 2025.
I consider that the appellants were afforded ample opportunity to adduce evidence in support of their offer to proffer the additional undertaking and their financial circumstances, but they failed to do so. Having regard to the fact that the appeal is scheduled to commence in approximately nine weeks’ time, I consider that the respondent is justified in not accepting the additional undertaking.
Mr Luitingh pointed to the appellants’ burden in preparing and providing appeal books, which he said might be affected by a different order requiring security for costs. He did not go so far, however, as to say that the appeal would be stifled by any such order, nor was there any evidence which would support any such claim.
For all these reasons, I accept that there should be an order in favour of the respondent concerning security for costs. I will make the following orders:
Pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 51.50(1) and, in the case of the first and second appellants, also under s 1335 of the Corporations Act 2001 (Cth):
(a) by 4:00pm on 16 June 2025 the appellants are to provide security in the sum of $20,000 towards the respondent’s costs of the appeal; (b) by 4:00pm on 7 July 2025 the appellants are to provide security in the further sum of $20,000 towards the respondent’s costs of the appeal; and (c) by 4:00pm on 28 July 2025 the appellants are to provide security in the further sum of $20,000 towards the respondent’s costs of the appeal,
these sums to be paid into Court or in such other form as the respondent may agree in writing before the relevant time expires.
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Victorian Xray Group (Dandenong) Pty Ltd
Malouf trading as Malouf Solicitors [2025] NSWCA 116
Security for costs of $60,000 was ordered in three instalments of $20,000, due by 4:00 pm on 16 June, 7 July, and 28 July 2025. The proceedings were stayed until the first instalment was provided. The respondent’s application to dismiss the appeal for failure to provide security was adjourned, with leave to approach the Registrar if an instalment was missed. The appellants were ordered to pay the costs of the security motion.