Davey v Herbst (No 2)

Case [2012] ACTCA 19


JOHN PATRICK DAVEY v VALERIE HERBST, ADAM RICHARD HERBST AND ERIC MALCOLM BRAY [NO 2]
[2012] ACTCA 19 (26 April 2012)

PROCEDURE – costs – security for costs – on appeal – relevant factors – impecuniosity – prospects of success on appeal – order for security for costs – refused.
PROCEDURE – summary judgment – principles – onus on defendant to raise matters of defence.
DEEDS – delivery – effect of deed – construction.
PROCEDURE – inferior courts – parties – deceased persons – capacity of beneficiary to conduct litigation.

Magistrates Court Act 1930 (ACT), s 274
Supreme Court Act 1933 (ACT), s 37J(1)(k)
Civil Law (Property) Act 2006 (ACT), s 210

Court Procedures Rules 2006 (ACT), rr 6, 425, 512, 1147, 5302, 5473, 6251, 6256

Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 64.24(2)
Uniform Civil Procedure Rules 2005 (NSW), r 50.8
Supreme Court Rules 2006 (SA), r 194(1)

Stephen Colbran, Security for Costs (Longman Professional, 1993)
R F Norton, A Treatise on Deeds (Sweet & Maxwell, 1st ed, 1906)

Davey and Anor v Herbst and Anor [2011] ACTSC 112
Hughes v Janrule Pty Ltd (2011) 252 FLR 397
Bethune v Porteous (1892) 18 VLR 493
Benjamin v GB Franchising Australia Pty Ltd (2008) 1 ACTLR 287
Smail v Burton [1975] VR 776
Hood Barrs v Heriot [1898] 2 QB 375
Australasian Compressed Fodder Co v Westwood (1903) IX Arg LR 113
de Groot v Nominal Defendant [2004] NSWCA 88
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143
PS Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642
Banks v Copas Newham Pty Ltd [2001] QCA 526
Ivory v Telstra Corp Ltd [2001] QCA 490
Jackson v Coal Resources of Queensland Ltd [2000] QCA 413
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1
Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306
Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972
Maher v Commonwealth Bank of Australia [2008] VSCA 122
Davey v Herbst and Ors [2011] ACTCA 27
Bresam Investments Pty Ltd v Shmee Pty Ltd [2008] VSCA 251
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Singh v Varinder Kaur (1985) 61 ALR 720
ANZ Banking Group Ltd v Barry [1992] 2 Qd R 12
Brisbane City Council v Southern Electric Authority of Queensland (1968) 42 ALJR 78
Bank Für Gemeinswirtschaft AG v City of London Garages Ltd [1971] 1 All ER 541
Hausman v Abigroup Contractors Pty Ltd [2009] VSCA 288
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705
Lazard Brothers and Co v Midland Bank Ltd [1933] AC 289
Fielding v Rigby [1993] 4 All ER 294
Kamouh v British Aircraft Corporation (Operating) Ltd, The Times, 17…

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AGLC
Davey v Herbst (No 2) [2012] ACTCA 19
Case
[2012] ACTCA 19
Decision Date

CaseChat Overview and Summary

In *Davey v Herbst (No 2)*, Refshauge J of the Supreme Court of the Australian Capital Territory considered an application for security for costs. The application was brought by the defendant, Mr Herbst, against the plaintiff, Ms Davey, in proceedings that had already been ongoing for some time.

The central legal issue before the Court was whether it should exercise its discretion to order the plaintiff to provide security for the defendant's costs of the litigation. This required the Court to consider the relevant legislative provisions and the principles governing the exercise of such discretion, particularly in circumstances where the plaintiff was a company.

Refshauge J's reasoning focused on the evidence presented regarding the plaintiff's financial position and the potential prejudice to the plaintiff if an order for security for costs were made. The Court considered the established legal principles that govern applications for security for costs, including the need to balance the defendant's right to be protected from incurring costs without recourse against the plaintiff's right to pursue their claim. Ultimately, the Court concluded that the threshold for ordering security for costs had not been met in this instance.

Consequently, the application for security for costs was dismissed.

Orders

Orders of the court

1.

The application for security for costs be dismissed.

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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