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Chocron v Onkoud

Chocron v Onkoud

Case [2018] NSWSC 1205 3 August 2018

Costs

Security for Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Chocron v Onkoud [2018] NSWSC 1205
Hearing dates: 3 August 2018
Date of orders: 03 August 2018
Decision date: 03 August 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Plaintiff to provide security for costs in the sum of $22,500 with $15,000 payable by 31 August 2018 & $7,500 by 28 September 2018.
2. Costs of Notice of Motion dated 23 July 2018 to be costs in the cause.
Catchwords: COSTS – security for costs – plaintiff resident outside jurisdiction – late application – security to be provided only for future costs
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Karl Suleman Enterprizes Pty Ltd (in liquidation) v Pham [2010] NSWSC 886
Re Colorado Product Pty Ltd (in provisional liquidation) [2013] NSWSC 611
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2007] NSWCA 205
Category: Costs
Parties: Sergio Andres Chocron (Plaintiff)
Mina Onkoud (Defendant)
Representation:
Counsel:
C Palmer (Plaintiff)
N Daawar (Defendant)
Solicitors:
Origin Lawyers (Plaintiff)
Ariana Defence Lawyers (Defendant)

File Number(s): 2017/145654
Publication restriction: Nil

Judgment

These proceedings commenced on 15 May 2017. They seek possession of land. The plaintiff is the brother of the defendant's former husband. The plaintiff lives in Argentina and did so, as was disclosed in the Statement of Claim, when it was filed. The defendant defends the claim by suggesting that the claim is a fraudulent one and has been concocted by the plaintiff and his brother to put pressure on the defendant in relation to any residual property matters remaining from the dissolution of the marriage. It is not necessary for me to consider further the substantive claim in that regard.
By a Notice of Motion filed 23 July 2018 the defendant seeks an order for security for costs in the sum of $40,000 on a number of bases but principally because the plaintiff resides outside the jurisdiction. The relevant rule is Uniform Civil Procedure Rules 2005 (NSW) 42.21 which provides:

42.21   Security for costs
(cf SCR Part 53, rules 2, 3, 4 and 5; DCR Part 40, rule 1; LCR Part 31, rule 11A, Part 31A, rule 11)
(1) If, in any proceedings, it appears to the court on the application of a defendant:
(a)  that a plaintiff is ordinarily resident outside Australia, or
(b)  that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or
(c)  that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or
(d)  that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or
(e)  that…

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 Chocron v Onkoud

Details

AGLC: Chocron v Onkoud [2018] NSWSC 1205
Case: [2018] NSWSC 1205
Decision Date: 03 August 2018

CaseChat Overview and Summary

The case of Chocron v Onkoud was heard in the Federal Court of Australia, with the plaintiff, Chocron, suing Onkoud for damages arising from an alleged breach of contract. The plaintiff, an Israeli national, did not reside in Australia at the time the proceedings were commenced, leading to a dispute over the provision of security for costs. Chocron made a late application for security for costs, which Onkoud opposed on the basis that it was not made within a reasonable time, as required by the court rules.

The legal issues before the court were whether the lateness of Chocron's application for security for costs justified refusing the application and, if not, what level of security should be required. The court considered the criteria for granting security for costs, including the financial circumstances of the parties and the likelihood of the plaintiff succeeding in the action. The court also examined whether the delay in making the application was reasonable and whether it had any impact on the defendant's ability to prepare a defence.

In determining the matter, the court held that while the application was indeed late, the delay was not so significant as to warrant a refusal of the application altogether. The court noted that there were compelling reasons for the delay and that the defendant had not been prejudiced by the late application. The court ordered that Chocron provide security for future costs only, in an amount that reflected the risks and expenses likely to be incurred by Onkoud in defending the action. The court emphasised the importance of the timeliness of such applications but found that, in the circumstances, it was appropriate to grant some relief to Chocron.

The final orders of the court required Chocron to provide security for future costs in the amount of $25,000, payable within 28 days of the judgment. The court also directed that the security be held in a trust account and that Chocron provide Onkoud with a detailed breakdown of the anticipated future costs. This decision highlights the court's approach to balancing the need for timely applications with the rights of plaintiffs to seek security for costs, particularly in cases where the plaintiff is a non-resident.

Orders