Cocks v Foreman

CITATION:	Cocks v Foreman [2009] NSWDC 34
HEARING DATE(S):	16 February 2009
EX TEMPORE JUDGMENT DATE:	16 February 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	The application is dismissed
CATCHWORDS:	PROCEDURE - Security for costs - party outside jurisdiction - delay
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CASES CITED:	Brundza v Robbie & Co [No 2] (1952) 88 CLR 171 KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FCR 189
PARTIES:	Keith Foreman (Defendant/Applicant) Richard Cocks (Plaintiff/Respondent)
FILE NUMBER(S):	5516 of 2007
COUNSEL:	G Curtin (Defendant/Applicant) J Trebeck (Plaintiff/Respondent)
SOLICITORS:	Mullane & Lindsay, Newcastle (Defendant/Applicant) Priest McCarron, Port Macquarie (Plaintiff/Respondent)

JUDGMENT

1 HIS HONOUR: This is an application by the defendant for security for costs and the application is brought pursuant to r 42.21(1)(a) which provides as follows:

If in any proceedings it appears to the court on the application of a defendant:
(a) that a plaintiff is ordinarily resident outside New South Wales

I omit the rest of sub r (1)

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and the proceedings be stayed until the security is given.

2 The action is brought by the plaintiff, Mr Cocks, against the defendant, Mr Foreman, for damages for negligence. Mr Foreman is, and at all material times has been, a solicitor. In May 1997 he received instructions from the plaintiff to act on behalf of the plaintiff in a claim against a Mr Finney, who had been a liquidator of a company in which the plaintiff had been a director and shareholder. That company had sold its assets in 1989. There was another director and shareholder apart from the plaintiff, a Mr Cunningham. Mr Finney was appointed liquidator of the company in 1980. He did not recover any funds on behalf of the company, and Mr Cunningham became bankrupt in February 1994.

3 Mr Finney resigned as liquidator in May 1995. Proceedings against him were commenced, but they were abandoned in 2001 because they were out of time, as I understand the evidence in support of this application. These proceedings were commenced in July 2007. A defence was filed in February 2008, in which the defendant admitted his failure to commence proceedings within the statutory period, but denied that the plaintiff suffered loss and damage by reason of the failure to commence proceedings, and the defendant says that, even if the proceedings had been commenced against the liquidator, the plaintiff would not have recovered anything because the liquidator did not have funds to pursue Mr Cunningham; and even if he did, Mr Cunningham and any other potential defendants were protected by the statute of limitations.

4 The plaintiff, as is clear from the statement of claim, although he resided in Australia, or was in Australia at some time, currently resides in the State of Michigan in the United States of America, and has done…