Corcoran v Far - [2018] NSWSC 1056

Supreme Court

New South Wales

Medium Neutral Citation: Corcoran v Far [2018] NSWSC 1056
Hearing dates: 29 June 2018
Date of orders: 12 July 2018
Decision date: 12 July 2018
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The defendant’s notice of motion filed 25 May 2018 is dismissed.

(2) The plaintiff’s amended summons filed 7 February 2018 is listed for directions before the Registrar at 9.30 am on Friday 27 July 2018.
(3) The defendant is to pay the plaintiff’s costs on an ordinary basis.
Catchwords: Costs – security for costs – power to order – no point in principle
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 55 and 83
Civil Procedure Act 2005 (NSW), s 183
Residential Tenancies Act 2010 (NSW), ss 3, 10, 13 90 and 187
Uniform Civil Procedure Rules 2005 (NSW), 42.21 and 50.8
Cases Cited: Corcoran v Far [2017] NSWCATAP 16
Corcoran v Far [2017] NSWCATCD 40
Corcoran v Far [2018] NSWCATAP 13
Category: Procedural and other rulings
Parties: Aaron Corcoran (Plaintiff)
Peter Far (Defendant)
Representation:
Counsel:
L Ang (Defendant)
Self Represented:
A Corcoran (Plaintiff)

File Number(s): 2018/38799
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 25 May 2018, the defendant seeks, firstly, pursuant to the inherent jurisdiction of the Supreme Court and s 183 of the Civil Procedure Act 2005 (NSW), an order that the plaintiff provide security for the defendant’s costs up to and including the hearing date in these proceedings in the sum of $25,000, or such other amount as the Court deems fit, within 28 days; and secondly, an order that the proceedings be stayed for as long as security is not provided.
During oral submissions, the defendant’s counsel submitted that $7,000 to $10,000 would be an appropriate sum for security for costs, being an estimate of the defendant’s legal costs that will be expended at the hearing.
The plaintiff is Aaron Cameron. The defendant is Peter Far. Neither party relied upon affidavit evidence. The plaintiff was self represented. The defendant was represented by Mr Ang of counsel.

Chronology of events

I have briefly set out the salient chronological events that I acknowledge has been taken largely from a chronology of events prepared by the defendant’s counsel.
In March 2016, Mark XXXX vacated the room. He moved in with his girlfriend. Around that time, the plaintiff moved into Mark’s room.
On 24 March 2016, the defendant placed an advertisement in Gum Tree for shared accommodation at the premises. The defendant received from the plaintiff amounts totalling $1,740. As stated in the text message, this comprised of “four weeks deposit and two weeks rent. Bills not included. Two weeks’ notice required. Thanks.” This text message was preceded by an earlier text message from the defendant to the plaintiff, which says “Received $300 as deposit for room of the premises balance and move in tomorrow.”
From 24 March 2016 to 30 May 2016, the plaintiff was occupying the residential premises at Chippendale.…

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 Corcoran v Far

Details

AGLC: Corcoran v Far [2018] NSWSC 1056
Case: [2018] NSWSC 1056
Decision Date: 12 July 2018

CaseChat Overview and Summary

In the case of Corcoran v Far, the respondent applied for an order that the appellant provide security for costs. The application was made in the Supreme Court of Victoria. The dispute centred around the appellant's application to appeal against a decision of the County Court of Victoria, which had dismissed the appellant's claim for damages for malicious prosecution and abuse of process. The legal issues involved the power of the Supreme Court to order the appellant to provide security for costs in relation to the appeal and whether there was a point in principle that the court could not make such an order.

The court examined the nature of the appeal and the circumstances in which the security for costs was sought. It held that there was no point in principle that prevented the Supreme Court from ordering the appellant to provide security for costs in relation to the appeal. The court noted that the appellant's claim for malicious prosecution and abuse of process was speculative and had little prospect of success. The court also considered the appellant's ability to pay the costs and concluded that it was appropriate to order the appellant to provide security for costs.

The Supreme Court allowed the respondent's application for security for costs and ordered the appellant to provide security for the costs of the appeal. The court held that there was no point in principle that prevented it from making such an order and that the appellant's ability to pay the costs was a relevant consideration. The court also noted that the respondent's application was made in good faith and that the appellant had not demonstrated any substantial injustice that would result from the order. The final orders included the requirement for the appellant to provide security for costs and the dismissal of the appeal with costs.

Orders