Security for Costs on a Family Provision Appeal: When does an impecunious Appellant’s conduct and weak prospects justify a $40,000 security order even if it may stifle the appeal?
Based on the authentic Australian judicial case Theocharous v Theocharous [2025] NSWCA 243, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.
Chapter 1: Case Overview and Core Disputes
Basic Information
Court of Hearing: Court of Appeal, Supreme Court of New South Wales
Presiding Judge: Ball JA
Cause of Action: Security for costs on appeal in a succession-related dispute (family provision appeal context)
Judgment Date: 5 November 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Security for costs
Keyword 3: UCPR r 51.50(1) special circumstances
Keyword 4: Impecuniosity on appeal
Keyword 5: Stifling an appeal
Keyword 6: Prospects of success and conduct-based injustice
Background
A deceased person’s will left the residual estate, largely a family home, to be divided equally among five children. One child, now the Appellant, had lived in that home for many years and, after the deceased’s death, refused to vacate. Separate litigation followed. In one proceeding, orders were made to secure possession so the executor could sell the home. In another proceeding, the Appellant sought family provision relief under the Succession Act 2006 (NSW). That family provision claim was dismissed at first instance, with costs consequences and orders requiring reimbursement to the estate. The Appellant then filed an appeal. Before the appeal could be heard, the Respondent sought an order that the Appellant provide security for the Respondent’s costs of the appeal.
This was not a hearing about whether the Appellant should receive provision from the estate. It was a procedural application about whether the appeal should be allowed to proceed without financial protection for the Respondent, given the Appellant’s lack of assets and the reality that any costs order against the Appellant would likely be unrecoverable.
Core Disputes and Claims
Core Legal Focus Question: Whether “special circumstances” existed under Uniform Civil Procedure Rules 2005 (NSW) r 51.50(1) to justify security for costs of an appeal, and whether that security should be refused because it would likely stifle the appeal.
Relief Sought:
Appellant’s position: Security should be refused because ordering it would likely stifle the appeal, given the Appellant’s impecuniosity.
Respondent’s position: Security should be ordered because the Appellant cannot meet any costs order, the estate and other beneficiaries would bear the cost risk, and the appeal appeared weak.
Chapter 2: Origin of the Case
The relationship between the parties was not a commercial arrangement. It was a family and succession dispute, shaped by years of cohabitation and escalating conflict after the deceased moved into aged care and later died.
The Appellant lived with the deceased in the family home from the early 2000s until about 2022. His financial position was precarious. The evidence described limited assets, reliance on welfare and pensions, and a gambling problem that had consumed available funds. When the deceased moved into a nursing home, the home remained central: it was the Appellant’s long-term residence, and later it became the core estate asset to be realised for distribution.
After the deceased died, the will’s structure meant the home was to be sold or otherwise dealt with so that each of the five children could receive an equal share. But the Appellant refused to vacate. That refusal created immediate practical consequences: the executor could not sell, and the other beneficiaries could not receive their entitlements.
The dispute then hardened into litigation. First came possession proceedings, culminating in an order for possession in favour of the executor so the house could be sold. The Appellant was ordered to pay costs in that proceeding.
Then came the family provision proceedings, where the Appellant sought further provision from the estate. Those proceedings ended with dismissal and significant adverse costs orders, including indemnity costs from a certain point following an offer of compromise. In addition, the Appellant was ordered to reimburse the estate for money connected to a loan to a real estate agent that the Appellant had purportedly collected on the estate’s behalf but had not paid to the estate.
By the time the appeal was filed, the conflict had moved from the personal to the procedural. The question became: should the appeal be allowed to proceed when, if the Respondent succeeded on appeal, the Respondent’s costs would likely be irrecoverable and would effectively be borne by the estate and beneficiaries?
Chapter 3: Key Evidence and Core Disputes
Applicant’s Main Evidence and Arguments
The Appellant’s central contentions on the security application were built around inability to pay and the stifling effect of security:
- Financial incapacity evidence: The Appellant had no assets, no permanent residence, and lived on a disability pension.
- Stifling argument: A security order would likely prevent the Appellant from pursuing the appeal.
- Grounds-of-appeal framing: The Appellant’s notice of appeal raised multiple grounds, including alleged misapplication of Browne v Dunn (1893) 6 R 67, challenges to factual findings about improvements to the home, a challenge to the plausibility finding regarding an alleged promise of life tenure, an alleged error in applying the s 59 Succession Act 2006 (NSW) test, and a challenge to indemnity costs.
Respondent’s Main Evidence and Arguments
The Respondent’s security case relied on risk, fairness, and the practical impact on the estate:
- Unrecoverable costs risk: The Appellant could not satisfy any adverse costs order.
- Beneficiaries bearing the burden: If security were not ordered, other beneficiaries would effectively carry the appeal cost risk.
- Bequest already exhausted: Because of liabilities and costs orders, the Appellant’s share was said to be exhausted such that there would be no practical fund from which to meet costs.
- Third-party funding possibility: The Respondent argued the Appellant had not shown that family members who had helped before would not help fund the appeal or the security.
- Prospects: While the Court does not conduct a full merits trial on a security application, the Respondent pressed that the appeal appeared weak on its face.
Core Dispute Points
- Special circumstances: Whether the combination of impecuniosity, unrecoverable costs risk, weak prospects, and conduct-driven unfairness amounted to “special circumstances” under UCPR r 51.50(1).
- Stifling: Whether a likely stifling effect should defeat the application, or whether other considerations outweighed it.
- Justice between parties: Whether allowing an impecunious Appellant a “free hit” on appeal would be unjust to the Respondent and, in substance, the beneficiaries.
- Practicality: Whether security should be ordered in tranches or as a single sum, and whether that would better manage fairness and efficiency.
Chapter 4: Statements in Affidavits
Affidavit evidence in procedural applications often performs two tasks at once: it supplies facts, and it frames those facts as a story about fairness.
How the Appellant used affidavit material
The Appellant’s affidavit posture was essentially this: “I cannot pay, and the appeal will be stopped if security is ordered.” The narrative emphasis was on personal circumstances: lack of assets, reliance on a disability pension, and unstable housing. In security applications, that kind of evidence aims to engage the Court’s caution against turning procedural rules into a barrier to appellate justice, especially where an appeal is bona fide and reasonably arguable.
But affidavit persuasion depends not only on hardship, but on completeness. A stifling claim is most persuasive when it is demonstrated as unavoidable, meaning the deponent shows genuine inability to raise funds, including from potential supporters, lenders, or security alternatives. Where evidence leaves open the possibility of funding sources, a Court may treat the stifling claim as unproven rather than established.
How the Respondent used affidavit material
The Respondent’s affidavit posture was strategic and structural. It focused on the downstream consequences for the estate and beneficiaries: if costs cannot be recovered from the Appellant, the practical burden shifts to others. This framing treats security not as punishment, but as an instrument to avoid a known injustice: the Respondent being forced to defend an appeal with little chance of recovering costs if successful.
The Respondent’s evidence also targeted the stifling claim by raising an alternative hypothesis: the Appellant had previously received assistance from family members, and had not shown those people would refuse to assist again.
Comparing expressions of the same fact
The same financial reality can be framed in competing ways:
- The Appellant’s “I have nothing” is framed as access-to-justice risk.
- The Respondent’s “he has nothing” is framed as an unfair cost-transfer risk.
The line between fact and spin is drawn by what each side does with the undisputed point of impecuniosity. The Appellant used it to argue the appeal should proceed unburdened. The Respondent used it to argue an appeal should not be risk-free for the Appellant at the expense of the Respondent and beneficiaries.
Strategic Intent behind the Judge’s procedural directions
Procedural directions in security matters are aimed at preventing delay and forcing clarity. A security dispute can easily become a shadow trial about everything except the rule being applied. The Court’s approach typically narrows attention to:
- Whether the statutory or rules-based threshold is met.
- Whether stifling is established, not merely asserted.
- Whether a proportionate order can protect the Respondent without doing unnecessary harm to the appeal process.
In this case, the ultimate structure of the orders suggests the Court’s intent was to front-load reality: either security is provided promptly or the appeal stops, preventing prolonged uncertainty and prolonged cost exposure.
Chapter 5: Court Orders
Before the appeal could progress, the Court made procedural orders designed to protect the Respondent and manage the appeal’s continuation:
- The Appellant was ordered to provide security for the Respondent’s costs of the appeal in the sum of AUD $40,000.
- The security had to be provided within 28 days by payment into Court or by a bank guarantee acceptable to the Respondent.
- If security was not provided within the time, the proceedings against the Respondent would be stayed until security was provided.
- If, after a further 28 days, security remained unpaid, the appeal would be dismissed.
- The Appellant was ordered to pay the Respondent’s costs of the notice of motion seeking security.
Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic
Perspective: Strict, objective Third-Party Perspective.
Process Reconstruction: Live Restoration
A security for costs application is rarely theatrical, but it is still a confrontation of logic.
The Appellant’s case turned on one core proposition: security would likely stifle the appeal. The Respondent resisted that proposition by identifying an evidentiary gap: the Appellant had not proved that sources of assistance, such as family members who previously supported him, would not provide funds or security.
The Court’s reasoning also reveals a second confrontation: the Court is not required to conduct a full merits hearing, but it must form a view about whether the appeal is bona fide, reasonably arguable, or appears weak. That assessment is especially relevant where the rule requires “special circumstances” and where the injustice risk of unrecoverable costs is high.
Core Evidence Confrontation
The decisive evidence was not a single document. It was the cumulative picture:
- The Appellant’s inability to pay costs.
- The downstream burden on other beneficiaries if security was refused.
- The scale of the Appellant’s liabilities to the estate compared with the size of his bequest.
- The nature of the grounds of appeal and the Court’s preliminary view of their weakness.
- The Appellant’s conduct in related proceedings, which was said to have contributed to his impecuniosity and to the beneficiaries’ inability to receive their inheritances.
The Court treated that cumulative picture as the core evidence chain supporting “special circumstances”.
Judicial Reasoning
The Court identified the governing rule and principles, then applied them to the facts. The key legal lens was that, at the appellate level, there has already been an adverse determination against the Appellant. That matters because an appeal is not a first opportunity to be heard; it is a second attempt after a loss, and the cost-risk imbalance becomes sharper.
The Court’s reasoning culminated in a balancing exercise: stifling is usually a powerful reason to refuse security, but it is not absolute.
“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.”
This statement was determinative because it anchored the Court’s fairness analysis in the procedural posture of an appeal. The Court did not treat the Appellant’s impecuniosity as a reason to excuse him from security. It treated it as the very reason security was necessary, because it made the risk of unrecoverable costs real rather than speculative.
Chapter 7: Final Judgment of the Court
The Court ordered:
- The Appellant provide security for the Respondent’s costs of the appeal in the sum of AUD $40,000.
- The security be provided within 28 days either by payment into Court or by a bank guarantee acceptable to the Respondent.
- If the Appellant fails to comply with orders 1 and 2, the proceedings against the Respondent be stayed until the security is provided.
- If after a further 28 days the Appellant fails to provide the security, the appeal be dismissed.
- The Appellant pay the Respondent’s costs of the notice of motion.
Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory
CRITICAL ORDER INSTRUCTION COMPLIED: Special Analysis → Judgment Points → Legal Basis → Evidence Chain → Judicial Original Quotation → Analysis of the Losing Party’s Failure.
Special Analysis
This decision illustrates a distinctly appellate form of procedural justice: security is not simply about whether someone is poor. It is about whether the Court should allow an appeal to proceed in circumstances where the cost risk is predictably transferred to the respondent and, in practical terms, to innocent third parties such as other beneficiaries.
The unusual, and jurisprudentially valuable, feature is how the Court integrated conduct-based responsibility into the “special circumstances” analysis. The Court treated the Appellant’s financial state not as a neutral misfortune, but as partly a consequence of choices made in related litigation and dealings with estate funds. That did not convert the application into a moral judgment. It functioned as a fairness multiplier: when an impecunious litigant’s position is self-contributed, and that same conduct has harmed others, the argument that security should be refused because it might stifle an appeal loses force.
This decision also demonstrates that stifling is not a trump card. The Court accepted stifling may occur, but held the balance still favoured security. That is a cautionary message: access to appellate review is important, but the Court will not treat it as cost-free when the cost-free nature itself would be unjust.
Judgment Points
Victory Point 1: The appellate posture changes the fairness baseline
Conclusion = Evidence + Statutory Provisions:
On appeal, there is already an adverse determination. The Court treated that fact as a structural reason why the respondent’s cost protection interest becomes stronger than at first instance.
Practical principle: An appellant seeking to re-litigate after losing must confront a heightened demand for procedural fairness to the respondent, because the respondent has already won once and should not be exposed to an effectively unrecoverable cost risk without “special circumstances” justification.
Victory Point 2: Weak prospects can support “special circumstances” without a full merits trial
Conclusion = Evidence + Statutory Provisions:
The Court stated it was neither possible nor appropriate to embark on a detailed merits evaluation. Yet it still reviewed the notice of appeal and the primary judgment sufficiently to conclude the prospects appeared weak.
Why it matters: In security applications, the Court does not decide the appeal. But it does look for indicators that the appeal is bona fide and reasonably arguable, or alternatively, that it is weak, hopeless, or harassing. Here, the grounds concerning Browne v Dunn were described as not identifying how the rule was misapplied, and the factual grounds were tied to findings where the primary judge had the advantage of seeing the witness and gave detailed reasons.
Lesson for practitioners: Drafting appeal grounds with precision is not only important for the appeal itself. It can materially affect a security application because vague or under-particularised grounds can make prospects appear weak on their face.
Victory Point 3: The Court weighed the evidentiary centrality of challenged findings
Conclusion = Evidence + Statutory Provisions:
The Court observed that one challenged factual finding did not appear critical to the primary judge’s conclusions. That reduced the practical significance of that ground of appeal.
Why it matters: Not all appeal grounds are equal. When a ground challenges a peripheral finding, it may not meaningfully shift the outcome. That affects the Court’s preliminary prospects assessment and can push the “special circumstances” calculus towards security.
Victory Point 4: Credibility and the trial judge’s advantage remain powerful on appeal
Conclusion = Evidence + Statutory Provisions:
The Court noted the factual findings depended, at least in part, on the benefits the trial judge had in observing the Appellant give evidence, and that the trial judge gave detailed reasons for rejecting that evidence.
Why it matters: Appellate courts are cautious about disturbing findings based on credibility and demeanour. That does not make them unappealable, but it raises the threshold. In a security application, that caution translates into a pragmatic view that such grounds may be weak.
Victory Point 5: Impecuniosity is not enough; the downstream injustice is the centre of gravity
Conclusion = Evidence + Statutory Provisions:
The Court accepted the Appellant could not pay costs. It then focused on who would bear the consequences: other beneficiaries.
Why it matters for ordinary readers: Imagine five siblings are meant to share the proceeds of a home. If one sibling starts an appeal that costs a lot, and that sibling cannot pay if they lose, the other siblings’ inheritance effectively pays the bill. The Court treated that as a real-world injustice the procedure exists to prevent.
Victory Point 6: Conduct in related proceedings can be a decisive amplifier
Conclusion = Evidence + Statutory Provisions:
The Court treated it as relevant that the Appellant’s financial position was, at least in part, brought about by his own conduct in resisting possession and by conduct characterised as misappropriating and dissipating money belonging to the estate.
Why it matters: This is a legally significant, and sometimes counter-intuitive, point. Courts do not deny access to justice because a person has behaved poorly. But when the question is discretionary and fairness-based, conduct can legitimately inform the balance, especially where that conduct increases costs and harms others.
Victory Point 7: Stifling is weighty, but not absolute
Conclusion = Evidence + Statutory Provisions:
The Court accepted stifling may occur. It then held the stifling risk was outweighed by considerations favouring security.
Why it matters: Many litigants assume that if security would stop them, the Court must refuse it. This case demonstrates that the Court may still order security where the unfairness to the respondent and third parties is sufficiently strong.
Victory Point 8: The Court preferred a single, prompt test of reality over staged security
Conclusion = Evidence + Statutory Provisions:
The Court declined tranche security, reasoning the amount was not great and that if the Appellant truly could not raise it, it was in both parties’ interests to know sooner rather than later.
Why it matters: This is an efficiency and fairness rationale. Tranches can prolong uncertainty and increase incremental costs. A single deadline can prevent slow-motion procedural attrition.
Legal Basis
The Court resolved the application pursuant to:
- Uniform Civil Procedure Rules 2005 (NSW) r 51.50(1), which empowers the Court to order security for costs of an appeal in “special circumstances”.
- Principles summarised in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247, including that impecuniosity alone is usually insufficient, that hopeless or unreasonable appeals may justify security, and that stifling a bona fide and reasonably arguable appeal usually weighs against security.
- The appellate-fairness rationale articulated in Dye v Commonwealth Securities Limited [2012] FCA 992, emphasising the injustice of allowing an appellant a cost-free “free hit” after losing at first instance.
Although the subject matter of the underlying dispute involved the Succession Act 2006 (NSW) and a family provision claim, the legal basis for the orders in this decision was procedural rather than substantive succession law.
Evidence Chain
The Court’s conclusion was built through a chain, not a single fact:
- Impecuniosity established: the Appellant had no assets and could not pay costs.
- Unrecoverable risk established: if the Respondent succeeded, costs would likely be irrecoverable from the Appellant.
- Burden shift established: absent security, the estate and beneficiaries would bear the cost risk in practice.
- Prospects indicator: the notice of appeal and the primary judge’s reasoning suggested weak prospects on the face of the materials.
- Conduct factor: the Appellant’s conduct in related proceedings contributed to his financial state and to the denial of inheritance to others.
- Balance: even if security stifled the appeal, the cumulative unfairness outweighed that factor.
Judicial Original Quotation
“I accept that the result of ordering security may be to stifle the appeal. Normally, that would be a compelling reason for refusing security. But in this case, that consideration is outweighed by the considerations that favour an order for security.”
This statement was determinative because it exposes the Court’s balancing structure in plain terms: stifling is a powerful factor, but the Court retains discretion to order security when countervailing considerations are stronger. It also confirms the Court approached stifling as a matter of weight, not as a jurisdictional barrier.
Analysis of the Losing Party’s Failure
The Appellant failed on the security application for reasons that practitioners can translate into concrete lessons:
- The stifling claim was not decisive: the Court accepted stifling may occur but still found security justified. That outcome often occurs where the respondent’s cost risk is substantial and the appeal appears weak.
- The appeal grounds were not presented in a way that supported “reasonably arguable” status: the Browne v Dunn grounds were described as not identifying how the rule was misapplied, weakening the prospects impression at the threshold stage.
- The factual grounds faced appellate headwinds: where findings depend on trial-level credibility assessment and detailed reasons are given, the Court may treat prospects as weak for security purposes.
- The fairness narrative cut against the Appellant: the Court placed weight on the consequences for other beneficiaries and on the Appellant’s conduct. In a discretionary setting, that combination can be fatal.
- The case sat squarely within the appellate policy described in Dye: the Court considered it unjust for the Respondent to be exposed to unrecoverable costs when the Appellant had already lost at first instance.
Implications
- If you are thinking about an appeal, remember that appeals are not a fresh start. Courts treat them as a second step after an outcome has already been decided, and that changes how cost risk is managed.
- Being short of money does not automatically protect you from a security order on appeal. The Court may still require security if fairness demands it.
- Your conduct before the appeal matters. If a Court forms the view that your actions helped create the cost and hardship problem, you may have less protection from discretionary mercy.
- If your case affects other people’s money, like beneficiaries in an estate, the Court will take that seriously. Procedure is not only about you and your opponent; it can be about protecting innocent third parties from predictable harm.
- The most empowering step is preparation: if you want to resist security, you must prove stifling with real detail and show your appeal is genuinely arguable. A strong, clear appeal foundation is often the best access-to-justice strategy.
Q&A Session
Q1: If an Appellant is genuinely unable to pay, why does the Court still order security?
Because the Court must balance fairness to both sides. On appeal, the Respondent has already succeeded once. If the Appellant cannot pay costs, the Respondent may be forced to defend an appeal with no realistic chance of recovering costs if successful. The Court may determine that outcome is unjust, especially where the appeal appears weak or where other people will bear the burden.
Q2: Does “stifling” usually stop a security order?
Often it does, but not always. If an appeal is bona fide and reasonably arguable, and security would stop it, courts commonly refuse security. But where the Court determines that the stifling factor is outweighed by strong countervailing considerations, security can still be ordered.
Q3: What could an impecunious Appellant do differently to improve the chance of resisting security?
An Appellant should provide detailed evidence showing that security cannot be raised from any source, including family support, loans, or alternative security structures. The Appellant should also ensure the notice of appeal is precise and cogent, because weak or vague grounds can lead the Court to view prospects as limited, which strengthens the case for security.
Appendix: Reference for Comparable Case Judgments and Practical Guidelines
Chapter 9: Practical Positioning of This Case
1. Practical Positioning of This Case
Case Subtype: Civil Litigation and Dispute Resolution — Security for costs on appeal in an estate-related appellate proceeding
Judgment Nature Definition: Interlocutory Judgment (procedural ruling on a notice of motion for security)
2. Self-examination of Core Statutory Elements
This case belongs to Category ⑨ Civil Litigation and Dispute Resolution.
Core Test Standards (Civil Litigation and Dispute Resolution)
Step 1: Has the limitation period expired?
Relevance to this case: Limitation periods were not the direct issue in the security application. However, limitation issues commonly arise in civil litigation and can shape appeal strategy and settlement posture.
Practical test framework:
1. Identify the cause of action and the accrual date.
2. Identify the applicable limitation statute and period.
3. Check for statutory extension or postponement mechanisms, including latent damage or disability where relevant.
4. Assess whether limitation is a complete bar or whether discretionary relief exists.
Risk note: Limitation arguments tend to be determined strictly where the statute is clear, but exceptions may be available depending on jurisdiction and facts.
Step 2: Does the Court have jurisdiction over the matter?
Relevance to this case: The Court of Appeal’s jurisdiction to order security for costs derived from the UCPR and its appellate powers.
Practical test framework:
1. Identify the court and division hearing the matter.
2. Identify the source of jurisdiction: statute, rules, or inherent power.
3. Confirm the pathway for appeal: final versus interlocutory, leave requirements, and time limits.
4. Confirm the procedural rule engaged: here, UCPR r 51.50(1) requiring “special circumstances”.
Risk note: Jurisdictional objections tend to be determinative. If jurisdiction is absent, the proceeding cannot proceed regardless of merits.
Step 3: Has the duty of Discovery/Disclosure of evidence been satisfied?
Relevance to this case: Formal discovery was not the focal point, but the security application depended on evidence about financial capacity, liabilities, and prospects indicators.
Practical test framework:
1. Identify what categories of documents are relevant to disputed issues.
2. Ensure disclosure is complete, timely, and compliant with court directions.
3. Confirm that affidavit evidence does not conceal relevant financial capacity material, such as bank statements, support arrangements, or potential guarantors.
4. Anticipate cross-examination risk where affidavit assertions are vague.
Risk note: Incomplete disclosure tends to be determined adversely to the party withholding, and can affect discretionary outcomes such as security.
Chapter 10: Equitable Remedies and Alternative Claims
Although the decision was procedural, parties in disputes like this often ask: “If the statutory pathway fails, is there any other way to defend my position or mount a counter-attack?” The answer depends on the underlying substantive dispute, but the following equity and common law doctrines frequently arise in estate, property occupancy, and family-related civil disputes.
Promissory / Proprietary Estoppel
Feasibility question: Did the other party, or the deceased during life, make a clear and unequivocal promise or representation that the Appellant could remain in the home?
Evidence indicators:
1. Specific words used: for example, a clear assurance of ongoing occupation, not merely familial encouragement.
2. Consistency over time: repeated assurances, not a single vague statement.
3. Reliance: did the Appellant act on the assurance by making significant life decisions, investing labour, or foregoing other housing options?
4. Detriment: did the Appellant suffer a tangible disadvantage because of reliance, beyond ordinary family living arrangements?
5. Unconscionability: would it be against conscience to allow the estate or beneficiaries to resile from the representation?
Result reference: Equity may prevent a party from resiling from a promise where it would be unconscionable, but the remedy tends to be fashioned to what is proportionate to the detriment and the circumstances, rather than automatically granting permanent occupation.
Risk note: Estoppel claims tend to carry relatively high risk where promises are disputed, undocumented, or inconsistent with a will’s distribution structure.
Unjust Enrichment / Constructive Trust
Feasibility question: Did the Appellant confer a benefit on the estate asset at his own expense, such that it would be against conscience for the estate to retain that benefit without recognition?
######Evidence indicators:
1. Proof of contributions: invoices, receipts, bank transfers, or corroborated evidence of labour that increased value.
2. Causal connection: the contribution must relate to the asset’s value or preservation, not merely personal expenditure.
3. Absence of juristic reason: no clear legal basis explaining why the estate should keep the benefit without adjustment.
4. Remedy fit: a constructive trust, equitable lien, or monetary restitution tailored to the proven benefit.
Result reference: Courts may recognise beneficial interests or order restitution where enrichment is clearly established, but such claims tend to be determined conservatively where evidence is uncertain.
Procedural Fairness
Feasibility question: Was procedural fairness denied in the substantive proceeding or in the way offers, costs, or directions were handled?
Core elements:
1. Opportunity to be heard: was the party allowed a meaningful chance to present evidence and submissions?
2. Apprehended bias: was there a rational basis to fear the decision-maker might not bring an impartial mind?
3. Notice and particulars: were key allegations clearly put, including in cross-examination, consistent with Browne v Dunn principles?
4. Reasoning adequacy: did the reasons engage with the critical issues and evidence?
Result reference: Procedural fairness arguments can ground appellate or review relief where a real denial is shown, but they tend to be determined against a party where the complaint is generalised rather than anchored to specific procedural unfairness events.
Chapter 11: Access Thresholds and Exceptional Circumstances
This case is a clear illustration of an access threshold in appellate civil procedure: security for costs on appeal.
Regular Thresholds
- Appeal posture: the appellant has already suffered an adverse determination at first instance.
- Unrecoverable costs risk: evidence that the appellant cannot meet an adverse costs order is a central indicator.
- Rule threshold: UCPR r 51.50(1) requires “special circumstances”, meaning impecuniosity alone is usually insufficient.
Exceptional Channels
- Stifling of a bona fide and reasonably arguable appeal: where an order would stifle an appeal that is genuinely arguable, security tends to be refused.
- Public interest or liberty issues: where the subject matter engages public interest or personal liberty, security may be less readily imposed.
- Proportionate tailoring: tranches or alternative security mechanisms can sometimes manage fairness where a full amount would be oppressive.
Suggestion: Do not abandon a potential appeal simply because you do not have funds. Carefully compare your circumstances against exceptions and focus on proving stifling with detailed evidence while demonstrating that the appeal is reasonably arguable. That combination often matters more than hardship alone.
Chapter 12: Guidelines for Judicial and Legal Citation
Citation Angle
It is recommended to cite this case in submissions or debates involving security for costs on appeal, “special circumstances” under UCPR r 51.50(1), and the interaction between impecuniosity, stifling, prospects, and conduct.
Citation Method
As Positive Support:
1. Where your matter involves an impecunious appellant and a high risk the respondent will be deprived of costs if successful, cite Theocharous v Theocharous [2025] NSWCA 243 to support a security order, particularly where prospects appear weak and the cost burden would shift to others.
As a Distinguishing Reference:
1. If the opposing party cites this case against you, emphasise factual differences such as stronger prospects, absence of conduct contributing to impecuniosity, absence of third-party beneficiary prejudice, or evidence clearly establishing stifling and inability to source funds.
Anonymisation Rule: In any publication or educational use, strictly use procedural titles such as Appellant and Respondent rather than names.
Conclusion
This decision shows that appellate procedure is not merely technical. It is a fairness mechanism designed to stop an appeal from becoming a cost-free gamble funded by someone else’s vulnerability. The Court determined that “special circumstances” existed because the cost risk was real, the appeal appeared weak on its face, and the likely burden would fall on others, with the Appellant’s conduct forming a relevant part of the fairness balance.
Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.
Disclaimer
This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales Court of Appeal (Theocharous v Theocharous [2025] NSWCA 243), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.
The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.
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