- Flynote
- Costs
- Case summary
- Tropical is to provide security for YM’s costs of the appeal in the sum of $US200,000.00 within 28 days of the date of this order, such security to be provided by way of bank guarantee or letter of credit in favour of YM in a form acceptable to YM. The appeal is hereby stayed until security for costs is provided as aforesaid. In default of Tropical giving security within the time limited, the appeal shall stand dismissed with costs to YM without further order. The decision whether to order security or not is a purely discretionary one, in which the court must consider all the relevant factors, including the timeliness of the application, and give each one the weight it deserves in the circumstances of the particular case [55]. However, this does not in any way diminish the value of prompt applications. It must surely remain an important consideration that an appellant should know at an early stage whether or not the respondent is going to demand security for costs in an appropriate case [56]. Ultramarine (Antigua) Ltd v Sunsail (Antigua) Ltd ANUHCVAP2016/0004 considered. A. Co. v K. Ltd (Practice Note) considered. Despite YM’s essentially unexplained delay in making the formal application, given all that passed between the parties since that time, and the repeated reminders which Tropical was given on the subject at different points between 2019 and 2022, the Court found that Tropical could not now realistically claim to have been taken by surprise by the application when it was finally made [57]. On that basis, it declined to treat the fact that the application was not made promptly as being by itself determinative of the application [58]. The Court then considered YM’s submission (1) that Tropical is resident outside the jurisdiction, (2) it did not appear to have sufficient assets within the jurisdiction to against which an order for costs might be enforced should its appeal be unsuccessful (3) Tropical is either insolvent and/or impecunious, such that it would be unable to satisfy any costs order against it [61]. The court attached more weight to the insufficiency of assets and the inability of Tropical to pay costs as it was either is either insolvent and/or impecunious [62] to [65]. The Court upheld the application, finding that this is a fit case for an order for security for the costs of the appeal to be made in YM’s favour [66].
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