Cohen v David - [2018] NSWDC 214

District Court

New South Wales

Medium Neutral Citation: Cohen v David [2018] NSWDC 214
Hearing dates: 13 July 2018
Date of orders: 09 August 2018
Decision date: 09 August 2018
Jurisdiction: Civil
Before: Strathdee DCJ
Decision:
(1)   The plaintiff’s motion for a stay of enforcement is dismissed.

(2)   I order the plaintiff pay into court the sum of $50,000.00 as security for costs within 28 days of this date.

(3)   The proceedings are stayed until the monies referred to in order 2 are paid into court.

(4)   I order the plaintiff to pay the defendant’s costs of and associated with the two motions.
(5)   I grant the parties liberty to apply.
Catchwords: SECURITY FOR COSTS – special circumstances
STAY OF ENFORCEMENT – discretion to order – what would be fair
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2002
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexander v Cambridge Credit Corporation Limited (Receivers Appointed) (1985) 2 NSWLR 685
Batterham v Makeig (No 2) [2009] NSWCA 314
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737
Category: Principal judgment
Parties: Robin Cohen (Plaintiff)
Suzy David and Fred David t/as David Legal (Defendant)
Representation:
Counsel:
A.E. Maroya (Plaintiff)
R. Notley (Defendants)
Solicitors:
Paramonte Legal (Plaintiff)
David Legal (Defendants)

File Number(s): 2018/00120107

Judgment

Introduction

By way of Notice of Motion filed 25 May 2018 the defendants (Suzy David & Fred David trading as David Legal) seeks security for costs pursuant to Rule 42.21(1) of the Uniform Civil Procedure Rules 2005 NSW and an order staying the proceedings until such security for costs order has been provided.
By Notice of Motion filed 31 May 2018 the plaintiff (Robin Cohen) seeks a stay of the determinations of the costs assessor, determination by the costs assessment review panel, and the judgment entered this court obtained by the defendants on 22 August 2017.

Background

The defendants acted for the plaintiff in a dispute concerning the sale of shares in a company Office Deals Pty Limited to a third party Jizhu Diao. Those proceedings were commenced in the Supreme Court of New South Wales and a judgment was published by Lindsay J on 22 February 2016. The court ordered, amongst other things, that the plaintiff pay to the defendants the sum of $281,995.00 plus interest and costs.
On 7 April 2017 the defendants made an application for assessment of their costs and in the application the defendants claimed legal costs and disbursements totalling $216,085.89 inclusive of GST.
On 5 July 2017 a Certificate of Determination of Costs was issued together with Reasons for the Determination. The Certificate of Determination of Costs required the plaintiff to pay the defendants $211,085.89.
On 11 August 2017 solicitors then acting for the plaintiff informed the defendants that the plaintiff intended to file an Application for Review of the Costs Assessment Determination.
On 16 August 2017 the solicitors for the plaintiff served on the defendants an unfiled Application for Review of Determination of a Costs Assessor and informed…

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 Cohen v David

Details

AGLC: Cohen v David [2018] NSWDC 214
Case: [2018] NSWDC 214
Decision Date: 09 August 2018

CaseChat Overview and Summary

The case of Cohen v David involved a dispute between the plaintiff and the defendant regarding a claim for security for costs. The matter was heard in the Supreme Court. The plaintiff sought a stay of enforcement of an order for security for costs, arguing that special circumstances warranted a departure from the usual rules. The defendant opposed the motion, contending that the plaintiff had not demonstrated any exceptional circumstances to warrant a stay.

The court was required to determine whether the plaintiff had established special circumstances that justified a departure from the general requirement for security for costs. The court also needed to decide whether, in the exercise of its discretion, it should order a stay of enforcement and, if so, what conditions should be imposed. Furthermore, the court had to consider the appropriate costs orders in relation to the two motions.

In dismissing the plaintiff’s motion for a stay of enforcement, the court found that the plaintiff had not demonstrated any special circumstances that would warrant a departure from the usual requirement for security for costs. The court held that the plaintiff was required to provide security for costs as a matter of principle. However, the court exercised its discretion to order a stay of enforcement, determining that it would be fair to stay the proceedings until the plaintiff paid the required security into court. The court ordered the plaintiff to pay $50,000.00 into court within 28 days and to pay the defendant’s costs of and associated with the two motions. The court also granted the parties liberty to apply.

The final orders of the court were that the plaintiff’s motion for a stay of enforcement was dismissed, but the proceedings were stayed until the plaintiff paid the required security into court. The plaintiff was ordered to pay $50,000.00 into court within 28 days and to pay the defendant’s costs of and associated with the two motions. The parties were granted liberty to apply.

Orders

Orders of the court

(1) The plaintiff’s motion for a stay of enforcement is dismissed.

(2) I order the plaintiff pay into court the sum of $50,000.00 as security for costs within 28 days of this date.

(3) The proceedings are stayed until the monies referred to in order 2 are paid into court.

(4) I order the plaintiff to pay the defendant’s costs of and associated with the two motions.

(5) I grant the parties 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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Medium Neutral Citation:	Cohen v David [2018] NSWDC 214
Hearing dates:	13 July 2018
Date of orders:	09 August 2018
Decision date:	09 August 2018
Jurisdiction:	Civil
Before:	Strathdee DCJ
Decision:	(1) The plaintiff’s motion for a stay of enforcement is dismissed. (2) I order the plaintiff pay into court the sum of $50,000.00 as security for costs within 28 days of this date. (3) The proceedings are stayed until the monies referred to in order 2 are paid into court. (4) I order the plaintiff to pay the defendant’s costs of and associated with the two motions. (5) I grant the parties liberty to apply.
Catchwords:	SECURITY FOR COSTS – special circumstances STAY OF ENFORCEMENT – discretion to order – what would be fair
Legislation Cited:	Civil Procedure Act 2005 (NSW) Legal Profession Act 2002 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alexander v Cambridge Credit Corporation Limited (Receivers Appointed) (1985) 2 NSWLR 685 Batterham v Makeig (No 2) [2009] NSWCA 314 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737
Category:	Principal judgment
Parties:	Robin Cohen (Plaintiff) Suzy David and Fred David t/as David Legal (Defendant)
Representation:	Counsel: A.E. Maroya (Plaintiff) R. Notley (Defendants) Solicitors: Paramonte Legal (Plaintiff) David Legal (Defendants)
File Number(s):	2018/00120107