Batterham v Makeig (No 2) - [2009] NSWCA 314

New South Wales

Court of Appeal

CITATION: Batterham v Makeig (No 2) [2009] NSWCA 314

HEARING DATE(S): 14 September 2009

JUDGMENT DATE:
16 October 2009

JUDGMENT OF: Macfarlan JA

DECISION: (1) Order that the first appellant furnish security for the costs of the respondent of and incidental to the appeal in the amount of $30,000.
(2) Stay the proceedings in this Court until such security is provided.
(3) Order that the first appellant pay the costs of the respondent of the respondent’s Notice of Motion filed on 26 August 2009.
(4) Order that the costs of the parties of the Notice of Motion filed by the appellants on 24 August 2009 be part of the costs of the appeal to this Court.

CATCHWORDS: PROCEDURE - security for costs of appeal - first appellant ordinarily resident outside New South Wales - Rule 42.21, Uniform Civil Procedure Rules 2005 - whether a "plaintiff" the subject of the Rule includes an appellant who was not a plaintiff in the court below

LEGISLATION CITED: Civil Procedure Act 2005
Interpretation Act 1987
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

PARTIES: Brian Joseph Batterham (First Appellant)
Batterham's Bus Lines Pty Ltd (Second Appellant)
Peter John Makeigh (Respondent)

FILE NUMBER(S): CA 40266/09

COUNSEL: G R Graham (Appellants)
G A Sirtes SC (Respondent)

SOLICITORS: Emery Partners (Appellants)
Somerville & Co (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 4373/07

LOWER COURT JUDICIAL OFFICER: Ward J

LOWER COURT DATE OF DECISION: 7 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Makeig v Batterham [2009] NSWSC 344

CA 40266/09

MACFARLAN JA
FRIDAY 16 OCTOBER 2009

BATTERHAM v MAKEIG (NO 2)

Judgment

1 HIS HONOUR: By Notice of Motion dated 26 August 2009, the respondent sought orders that the hearing of the appeal be expedited and that the appellants pay $50,000 into Court as security for the respondent’s costs of the appeal. I granted expedition and, on the application of the appellants, a conditional stay of execution of the judgment below, by my judgment of 18 September 2009 ([2009] NSWCA 295). I will not repeat the description which I gave in that judgment of the nature of the proceedings and of the circumstances of the parties.

2 It remains for me to deal with the respondent’s application for security for costs of the appeal and with the costs of both Notices of Motion. The application for security is pressed only as against the first appellant.

3 Power to order security for costs of an appeal is conferred by Rule 51.50 of the Uniform Civil Procedure Rules 2005 (“UCPR”). That rule permits the Court to order security “in special circumstances”. The Rule states that it does not affect the powers of the court under Rule 42.21. Rule 42.21(1)(a) empowers the court to order security for costs where “a plaintiff is ordinarily resident outside New South Wales”. It is upon Rule 42.21, and in particular Rule 42.21(1)(a), that the respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batterham v Makeig (No 2)

Details

AGLC: Batterham v Makeig (No 2) [2009] NSWCA 314
Case: [2009] NSWCA 314
Decision Date: 16 October 2009

CaseChat Overview and Summary

In *Batterham v Makeig (No 2)*, the Court of Appeal of New South Wales considered an application for security for costs of an appeal. The first appellant, who was ordinarily resident outside New South Wales, sought to resist the respondent's application for security.

The central legal issue before the Court was whether the term "plaintiff" as used in Rule 42.21 of the *Uniform Civil Procedure Rules 2005* (NSW) extended to an appellant in an appeal who had not been the plaintiff in the court below. The respondent argued that the rule, which allows for security for costs to be ordered against a plaintiff ordinarily resident outside New South Wales, should apply to the first appellant.

Macfarlan JA determined that the term "plaintiff" in Rule 42.21 should be interpreted broadly to include any party who initiates proceedings in the court, which in the context of an appeal, would encompass an appellant. His Honour reasoned that the purpose of the rule is to protect respondents from the risk of incurring costs that cannot be recovered from a party ordinarily resident outside the jurisdiction. Applying this interpretation, the Court ordered the first appellant to furnish security for the respondent's costs of the appeal in the amount of $30,000 and stayed the proceedings until this security was provided. The Court also made orders regarding the costs of the parties' respective notices of motion.

Orders

Orders of the court

(1) Order that the first appellant furnish security for the costs of the respondent of and incidental to the appeal in the amount of $30,000.

(2) Stay the proceedings in this Court until such security is provided.

(3) Order that the first appellant pay the costs of the respondent of the respondent’s Notice of Motion filed on 26 August 2009.

(4) Order that the costs of the parties of the Notice of Motion filed by the appellants on 24 August 2009 be part of the costs of the appeal to this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Batterham v Makeig (No 2) [2009] NSWCA 314
HEARING DATE(S):	14 September 2009
JUDGMENT DATE:	16 October 2009
JUDGMENT OF:	Macfarlan JA
DECISION:	(1) Order that the first appellant furnish security for the costs of the respondent of and incidental to the appeal in the amount of $30,000. (2) Stay the proceedings in this Court until such security is provided. (3) Order that the first appellant pay the costs of the respondent of the respondent’s Notice of Motion filed on 26 August 2009. (4) Order that the costs of the parties of the Notice of Motion filed by the appellants on 24 August 2009 be part of the costs of the appeal to this Court.
CATCHWORDS:	PROCEDURE - security for costs of appeal - first appellant ordinarily resident outside New South Wales - Rule 42.21, Uniform Civil Procedure Rules 2005 - whether a "plaintiff" the subject of the Rule includes an appellant who was not a plaintiff in the court below
LEGISLATION CITED:	Civil Procedure Act 2005 Interpretation Act 1987 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
PARTIES:	Brian Joseph Batterham (First Appellant) Batterham's Bus Lines Pty Ltd (Second Appellant) Peter John Makeigh (Respondent)
FILE NUMBER(S):	CA 40266/09
COUNSEL:	G R Graham (Appellants) G A Sirtes SC (Respondent)
SOLICITORS:	Emery Partners (Appellants) Somerville & Co (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 4373/07
LOWER COURT JUDICIAL OFFICER:	Ward J
LOWER COURT DATE OF DECISION:	7 May 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Makeig v Batterham [2009] NSWSC 344