Federal Court of Australia

Wang v Creation Homes QLD Pty Ltd [2026] FCA 1538

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s interlocutory application filed 12 October 2026 is dismissed.

2.    The Appellant pay the Respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

1    This proceeding is an appeal from the judgment of the primary judge in Wang v Creation Homes QLD Pty Ltd [2026] FCA 136, delivered on 27 February 2026 (Primary Judgment).

2    The primary judge dismissed the appellant’s (Ms Wang) claim and upheld the respondent’s (Creation Homes) cross claim. Ms Wang was ordered to pay a sum of $51,800 plus interest at 15% per annum from 6 June 2018, and a further sum of $114,742.66 plus interest at 15% per annum from 28 January 2020. Ms Wang was also ordered to pay Creation Homes’ costs.

3    On 25 March 2026, Ms Wang filed this appeal, which is listed to be heard on 25 November 2026 before the Full Court constituted by myself, Justice Abraham and Justice Jackman.

4    On 7 May 2026, Creation Homes filed an interlocutory application for security for costs. A judicial registrar heard the application on 28 August 2026. On 21 September 2026, the judicial registrar delivered judgment and ordered Ms Wang give security for Creation Homes’ costs of this appeal in an amount of $42,500 (security) and that the security be paid into Court within 28 days, being 19 October 2026. The judicial registrar also ordered that the appeal be stayed until the security is given; the appeal be dismissed if the security is not paid by 19 October 2026; and Ms Wang pay 80% of Creation Homes’ costs of the application.

5    By interlocutory application filed on 12 October 2026 (Application), Ms Wang seeks orders
(reproduced verbatim):

Pending review of Registrar Birchall’s orders of 21 September 2026, orders 1–3 and the security order $42,500 be stayed, and the appeal not be stayed or dismissed for non-payment pending review.

6    On 13 October 2026, my associate wrote to the parties advising that Ms Wang’s Application would be heard by me on behalf of the Full Court on the papers, noting that the security is due on 19 October 2026. I directed the parties file written submissions by 2pm on 15 October 2026.

7    In support of the Application, Ms Wang relies upon an affidavit sworn by her on 12 October 2026. The affidavit deposes to complaints Ms Wang has with the primary judge’s decision and asserts that the judicial registrar may have been misled by Creation Homes’ material on the security application.

8    There is nothing deposed to in the affidavit which warrants the granting of a stay of the security orders made by the judicial registrar on 21 September 2026. Ms Wang did not file any submissions in support of the Application.

9    Creation Homes filed submissions on 15 October 2026, opposing any stay of the security orders. Creation Homes submits that there is no basis for such a stay and that the current timetable for payment of the security should be maintained for three reasons. First, the Application was filed on 12 October 2026, some three weeks after the security orders were made and only seven days before the security falls due. The Application was made within time, but I accept that there was some delay which has not been explained. Secondly, the review is being determined promptly, on the papers, before the security is due to be given, such that any stay is redundant. Thirdly, a date has already been fixed for the hearing of the substantive appeal before the Full Court, being 25 November 2026. Any stay of the security orders will interfere with the current timetabling orders and is likely to result in the adjournment of the hearing to 2027, which would cause real prejudice to Creation Homes. I pause to note that Creation Homes does not elaborate on the prejudice it will suffer.

10    Given Ms Wang’s affidavit in support of the Application reveals no basis for a stay of the security orders and she did not file any submissions in support of the Application, it could be said on that basis alone that the Application is devoid of merit and should be dismissed with costs. However, it is unclear whether Ms Wang’s Application as drafted is only for a stay of the orders pending a further review of the security orders or if the Application also encompasses review of the security orders.

11    Creation Homes’ submissions also address the merits of a review of the security orders. In determining whether a stay should be granted, it is appropriate to consider whether an application for review has any merit, so I will briefly address that question.

12    In summary, Creation Homes submits that the judicial registrar validly exercised the power to order security and that the decision should be affirmed. Creation Homes accepts that a review of a judicial registrar’s decision is a hearing de novo. Creation Homes also submits that “the fact that the nature of the review conducted by the Court is a de novo review does not mean that the review proceeds as if no order had been made by the Registrar”: Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [7] (Allsop CJ, Markovic and Colvin JJ). The balance of Creation Homes’ submissions is directed at why the judicial registrar’s decision was correct.

13    The statement relied upon from Bechara v Bates must be put in context. The whole of the relevant paragraph reads as follows:

If an order is made by a registrar in the exercise of delegated judicial power and there is a review that results in a different conclusion by a judge to that reached by the registrar then an order is required to bring the operation of the existing order to an end. The Court, on review, does not determine that the earlier order was made without authority. Rather, by way of oversight, it makes a new order to replace the registrar’s order and does so in the exercise of the power of review which is a condition of the delegation. The fact that the nature of the review conducted by the Court is a de novo review does not mean that the review proceeds as if no order had been made by the registrar or that the Court, if persuaded to make a different decision, makes orders as if there had been no order by the registrar.

14    As is clear, the Full Court was addressing the status of orders made by a registrar by way of delegated power when an application for review has been made. The Full Court was not there addressing the nature of the review task undertaken by the Court. At [17], the Full Court said:

The review does not hinge, or focus, upon error in the decision of the registrar. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo. The importance of the de novo rehearing is Constitutional, being the supervisory condition that enables judicial power to be delegated to a registrar.

15    Therefore, the Court’s task in a hearing de novo is not to determine whether or not the judicial registrar’s decision was “correct”, but to reconsider the evidence and the law. Nonetheless, Creation Homes’ submissions do address the reasons why the security for costs orders should be affirmed (albeit by reference to the “correctness” of the decision).

16    Section 56 of the Federal Court of Australia Act 1976 (Cth) provides, relevantly:

(1)    The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

(2)    The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

…

(4)    If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.

(5)    This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.

17    Rule 36.09 of the Federal Court Rules 2011 (Cth) provides relevantly:

(1)    A party may apply to the Court for an order that:

(a)    the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and

(b)    the appeal be stayed until security is given; and

(c)    if the appellant fails to comply with the order to provide security within the time specified in the order — the appeal be stayed or dismissed.

(2)    An application under subrule (1) must be accompanied by an affidavit stating the facts in support of the application.

18    The Court has a broad discretion as to whether to order security for costs. The factors relevant to the exercise of the discretion include (as set out in Von Schoeler v Taylor and Co trading as Boral Timber [2019] FCA 941 at [5] (Rangiah J)):

(1)    the appellant’s prospect of success;

(2)    the extent of the risk that a costs order will not be satisfied;

(3)    whether the making of a costs order would be oppressive in that it would stifle a reasonably arguable claim;

(4)    whether any impecuniosity of the appellant arises out of conduct alleged against the respondent;

(5)    whether there are aspects of public interest which weigh against such an order;

(6)    whether there are particular discretionary matters peculiar to the circumstances of the case; and

(7)    the timing of the application, in that it should be brought promptly.

19    These discretionary factors are well established: see, for example, Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 at 636 (Hill J); Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1 at [7] (Allsop CJ, Jessup and Middleton JJ); Dye v Commonwealth Securities Ltd [2012] FCA 992 at [26] (Emmett J); Craven v Ready Flowers Pty Ltd [2014] FCA 693 at [15] (Rangiah J).

20    In relation to factor one, Ms Wang’s prospects of success, Creation Homes submits that the affidavit of Ms Wang filed in support of the Application does not identify any error in the Primary Judgment and does not improve Ms Wang’s prospects of success in the appeal but rather re-ventilates factual contentions that were, or could have been, raised before the primary judge. For the purpose of considering the prospects of success in relation to a substantive application for review, it would be necessary to consider the merits of the appeal on the basis of the Primary Judgment, the notice of appeal and supporting affidavit (being the relevant material filed to date). At this stage, it suffices to say two things. First, the primary judge found that each of Ms Wang’s claims was statute barred and, in any event, devoid of merit. Therefore, to succeed on appeal, Ms Wang would have to demonstrate, in relation to at least one of her causes of action, that the primary judge erred in respect of both those ultimate findings. Secondly, in its present form, the notice of appeal is difficult to understand, and the alleged errors are not immediately apparent.

21    Creation Homes also submits that, as found by the judicial registrar, there is a real and material risk that Ms Wang will not satisfy any adverse costs order, whether from incapacity or recalcitrance. It suffices to say that Ms Wang’s affidavit in support of the Application does not address her ability and/or willingness to meet any adverse costs order and that there is no evidence that Ms Wang has paid any of the sums owing under the Primary Judgment – noting the orders have not been stayed and so remain in force.

22    Finally, as I have said, Ms Wang did not put on any submissions and her affidavit in support did not intelligibly articulate any basis for the making of the orders she seeks. Therefore, there is no evidence before me and no submissions directed towards factors (3)–(7) above.

23    There is no evidence before me or any articulated basis supporting the grant of a stay of the security orders. The Application is devoid of merit and will be dismissed with costs. For the avoidance of doubt, the judicial registrar’s orders of 21 September 2026 remain in force.

Associate:

Dated:    16 October 2026