Carretero v Ioannidis [2026] NSWCA 19 (2 March 2026)

Court

• Court of Appeal, Supreme Court of New South Wales

• Judge: Griffiths AJA

• Ex tempore judgment (revised)

Facts

• The respondent, Ms Ioannidis, obtained judgment in the District Court in a dog‑attack claim under section 25 of the Companion Animals Act 1998 (NSW): Ioannidis v Carretero [2025] NSWDC 258 (Catsanos SC DCJ), with damages of $101,788.63 and costs.

• The appellant, Ms Carretero, appealed on seven grounds directed to causation, psychiatric injury, earning capacity, quantum, and credibility, and foreshadowed fresh evidence relating to the respondent’s work and social activity.

• Shortly before the listed appeal hearing (24 March 2026), the respondent filed a notice of motion (20 February 2026) seeking security for the costs of the appeal under the Uniform Civil Procedure Rules 2005 (NSW) and, more generally, r 42.21. The appellant is self‑represented and impecunious.

• Earlier, Catsanos SC DCJ had granted a stay pending appeal, finding potential grounds that could affect the outcome and noting the appellant’s limited means.

Issues

• Whether “special circumstances” existed to enliven the power to order security for costs of an appeal under the UCPR and, if so, whether the residual discretion should be exercised to order security in circumstances of:

• the appellant’s impecuniosity and likely stultification of the appeal;

• the arguable merits of at least some grounds and the application to adduce fresh evidence;

• the timing of the motion and delay by the respondent;

• proportionality of costs having regard to the quantum at stake.

Reasoning

• Principles:

• The Court referred to the general power and the specific appellate provision concerning security for costs, requiring “special circumstances” before an order may be made. The well‑established principles include that:

  • no order should be made absent special circumstances;

  • impecuniosity alone usually does not suffice;

  • an order may be appropriate if the appeal is hopeless or unreasonable;

  • where a bona fide, reasonably arguable appeal would be stifled, security should usually not be ordered; and

  • all relevant matters inform the residual discretion once special circumstances are shown.

• Authorities considered included Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18]; Brown v King [2022] NSWCA 75; P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; and Boensch v Transport for NSW [2024] NSWCA 86 on delay.

  
  

• Merits:

• Liability had been admitted at trial and was not challenged, but the appeal targeted damages, including economic loss. On the filed materials and submissions, the Court could not conclude the appeal lacked real prospects. The District Court’s earlier stay decision also supported that the appeal was not so lacking in merit as to deny interlocutory relief.

• Ground 3 (capacity for work) was acknowledged by the respondent’s counsel to be arguable, and the application to adduce fresh evidence was not said to be hopeless. That application would be heard with the appeal.

• Impecuniosity and stultification:

• The appellant’s affidavit evidence established impecuniosity and an inability to meet a substantial security order. Any significant order would stifle the appeal. While impecuniosity may count toward special circumstances, it also weighs against ordering security in the residual discretion where the appeal is reasonably arguable.

  
  

• Proportionality:

• The respondent relied on section 60 of the Civil Procedure Act 2005 (NSW), pointing to the proportion of the appeal focused on the $35,000 economic loss component. The Court acknowledged proportionality but did not find it determinative against the other factors.

  
  

• Delay:

• The motion was filed more than four months after the notice of appeal and only about three weeks before the hearing. No satisfactory explanation was provided. Delay is a material discretionary factor weighing against ordering security.

Held

• The respondent’s notice of motion for security for costs filed 20 February 2026 was dismissed, with costs. The Court was not satisfied the appeal lacked real prospects; any order would likely stultify the appeal given the appellant’s impecuniosity; and the unexplained delay in bringing the application further militated against relief.