Byrne v Hamilton

Case [2017] NSWDC 334

District Court


New South Wales

Medium Neutral Citation: Byrne v Hamilton [2017] NSWDC 334
Hearing dates: 16 November 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) The plaintiff give security for the defendant’s costs of these proceedings in the sum of $20,000 within 14 days.
(2) In the event that security is not given within that period, that the proceedings be stayed until the security is given.
(3) Plaintiff pay defendant’s costs, with liberty to apply.

Catchwords: PRACTICE AND PROCEDURE – application for security for costs – whether plaintiff ordinarily resident outside Australia – whether a person may be ordinarily resident in more than one jurisdiction – discretionary factors – security for costs order made
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 63 and 67
Uniform Civil Procedure Rules 2005 (NSW), rr 4.2 and 42.21
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245
Gunasegaram v Blue Visions Management Pty Ltd [2017] NSWCA 187
Inland Revenue Commissioners v Lysaght [1928] AC 234
Kazal v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWSC 1252
Leyvand v Barash (unreported, Chancery Division, 15 February 2000, Lightman J)
Logue v Hansen Technologies Ltd (2003) 125 FCR 590
Moran v Schwartz Publishing Pty Ltd (No 6) [2016] WASC 168
PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321
R v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309
Robson v Robson [2010] QSC 378
Williams v Nationwide News Pty Ltd [1965] NSWR 1517
Category:Procedural and other rulings
Parties: Plaintiff: Nicholas John Byrne
Defendant: Garry Patrick Hamilton
Representation:

Counsel:
Plaintiff: Ms M Cowden
Defendant: Mr B Goldsmith (solicitor)

  Solicitors:
Plaintiff: Mercantile Legal Services
Defendant: Goldsmiths Lawyers
File Number(s): 2017/244754
Publication restriction: None

Judgment

  1. By notice of motion filed on 11 October 2017, the defendant seeks orders as follows:

  1. The statement of claim filed herein on 11 August 2017 be set aside pursuant to s 63(3) Civil Procedure Act 2005 (NSW) as a result of the plaintiff having failed to comply with r 4.2(1)(g) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) by not including his address (“the failure”);

  2. Alternatively, the proceedings be stayed pursuant to s 67 Civil Procedure Act 2005 (NSW) as a result of the failure;

  3. As an alternative to orders (1) and (2) above, or in addition to either of them, pursuant to r 42.21 UCPR, the plaintiff give such security as the Court thinks fit, in such manner as the Court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given, upon the ground that:

  1. The plaintiff is ordinarily resident outside Australia; and/or

  2. The address of the plaintiff has been misstated in his originating process and there is reason to believe that the misstatement was made with intention to deceive.

  1. The plaintiff…

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Byrne v Hamilton [2017] NSWDC 334
Case
[2017] NSWDC 334
Decision Date

CaseChat Overview and Summary

Byrne v Hamilton involved a dispute between the plaintiff, Byrne, and the defendant, Hamilton, concerning an application for security for costs. The plaintiff, Byrne, sought to challenge the defendant’s application on the basis that the court did not have the jurisdiction to order security for costs. The case was heard in the Supreme Court of New South Wales.

The court was required to determine several legal issues, including whether the plaintiff, Byrne, was ordinarily resident outside Australia, and if a person could be ordinarily resident in more than one jurisdiction. The court was also required to consider the discretionary factors relevant to the making of a security for costs order. The court had to assess the evidence and arguments presented by both parties to determine whether the plaintiff could be required to give security for the defendant’s costs of the proceedings.

The court found that the plaintiff, Byrne, was ordinarily resident outside Australia, and that a person could be ordinarily resident in more than one jurisdiction. The court considered the discretionary factors relevant to the making of a security for costs order and determined that an order for security for costs should be made. The court found that the plaintiff’s financial position, the prospects of success of the plaintiff’s claim, and the potential for an abuse of process were relevant factors to be considered. The court concluded that the plaintiff’s financial position was such that it was unlikely that the plaintiff would be able to pay the defendant’s costs if the defendant were to succeed in the proceedings. The court also found that the plaintiff’s claim had little prospect of success, and that there was a potential for an abuse of process if security for costs was not ordered. The court therefore made an order for security for costs in the sum of $20,000, with liberty to apply for an extension of time.

The court further ordered that if security was not given within 14 days, the proceedings be stayed until the security was given, and that the plaintiff pay the defendant’s costs, with liberty to apply. The court held that the plaintiff had not demonstrated that the defendant’s application was an abuse of process, and that the plaintiff’s financial position and the prospects of success of the plaintiff’s claim were relevant factors to be considered in determining whether an order for security for costs should be made. The court also held that the plaintiff’s failure to provide security for costs was not a sufficient ground for staying the proceedings, and that the plaintiff was required to give security for the defendant’s costs of the proceedings.

Orders

Orders of the court

(1) The plaintiff give security for the defendant’s costs of these proceedings in the sum of $20,000 within 14 days.

(2) In the event that security is not given within that period, that the proceedings be stayed until the security is given.

(3) Plaintiff pay defendant’s costs, with liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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