Evans v Cleveland Investments Global Pty Ltd

[2013] NSWCA 439

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Evans v Cleveland Investments Global Pty Ltd [2013] NSWCA 439

Hearing dates:

09/12/2013

Decision date:

09 December 2013

Before:

Leeming JA

Decision:

1. In the event that security in the amount of $15,000 ordered on 15 July 2013, to be provided by way of an unconditional bank guarantee from an Australian trading bank, is not provided before 4pm on Friday 17 January 2014, the appeal is dismissed with costs.

2. Mr Evans to pay the respondents' costs of today.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - security for costs ordered five months previously - no security provided - further opportunity to provide security granted - guillotine order in event no security granted

Cases Cited:

Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377

Category:

Interlocutory applications

Parties:

Peter Ronald Evans (appellant)
Cleveland Investments Global Pty Ltd (first respondent)
Ficaro Pty Ltd (second respondent)

Representation:

Counsel:
Appellant in person
M Baddams (solicitor-advocate for the respondents)
Solicitors:
Swaab Attorneys (respondents)

File Number(s):

2012/388559

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2012] NSWSC 1529

Date of Decision:

2012-12-07 00:00:00

Before:

Lindsay J

File Number(s):

2009/288926

Judgment

1. LEEMING JA: This matter was referred to me by the Registrar for consideration for dismissal for want of prosecution and failure to comply with an order I made on 15 July 2013 for the provision of limited security for the appeal in the amount of $15,000. The concern of the Registrar has focused upon (1) the failure by Mr Evans, who appears in person, to appear on three occasions when his appeal was listed for directions, and (2), the non-provision of security.

1. Mr Evans has explained from the Bar table that he was unaware of the first directions hearing and that he was out of the country for the second and third, as to which he provided a letter to the Registrar dated 22 September 2013. There is nothing before me to indicate that otherwise there has been non-appearance by Mr Evans. The substantive matter is the non-provision of security.

1. There has been no attempt to review the orders that I made on 15 July 2013 which were:

2. On the motion for security for costs:

(1) Order that pursuant to r 42.21 and r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) the appellant provide security for the costs of the first and second respondents within twenty-eight days of today in the amount of $15,000 by way of an unconditional bank guarantee from an Australian trading bank.

(2) Order that until such security is given these proceedings be stayed.

1. There is no suggestion from Mr Evans that he is unable to provide security in the amount of $15,000. His affidavit of 3 December 2013 states that he expects to be paid "some $15,000" in "early January 2014". It states in [10] that he proposes to use that sum solely for the purposes of providing security. When asked by me, Mr Evans proffered 15 January 2014 as the date.

1. The approach to be taken in a matter like this, focusing as I do solely upon the non-compliance with orders for security for costs, is that adopted by Tobias JA in Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377. There his Honour had regard to these five factors (at [24]):

"(a) The period that has elapsed since the security was ordered;

(b) The fact that the plaintiff has been on notice of the application for dismissal;

(c) The seeming inability of the plaintiff to further fund the proceedings;

(d) The prejudice to the defendant; and

(e) The position of the Court."

1. In the present case: (a) a considerable period will have elapsed by 15 January 2014, namely six months since the security was ordered; (b) Mr Evans has been on notice for some few weeks at least that there is an application for dismissal brought on the Court's own application; and I have placed particular regard on paragraph (c).

1. In the case of Porter (No 3) there was found to be an inability to provide security. That is not this case. Mr Evans maintains that he is able to do so and in the relatively near future.

1. There is little before me by way of evidence as to the prejudice of the defendant for any further delay. The Court's position is that matters in this list must be progressed efficiently and cannot be permitted simply to be adjourned from time to time with no prosecution. I do not propose to dismiss the proceedings here and now. As Tobias JA said in [38] of Porter (No 3), "summary dismissal of an appeal brought as of right is an extreme measure", and there has not, on the evidence has been adduced before me today, been demonstrated a case for that extreme measure.

1. In my view it is appropriate for Mr Evans to be given one chance, but a last chance, and therefore I propose to make orders which permit the appeal to continue only if the amount of $15,000 ordered on 15 July 2013 is provided by the means there stated by no later than 4pm on Friday 17 January. If that does not occur the proceedings will be dismissed.

1. I should be precise. The order that was made on 15 July 2013 was for security to be provided "by way of an unconditional bank guarantee from an Australian trading bank". There has not been any dispute or controversy as to the form of that order. That is the form of security that is to be provided by no later than 4pm on 17 January 2014.

1. I order that if there is continued non-compliance with order 2(1) made by me on 15 July 2013 the appeal is dismissed with costs.

[Discussions as to costs]

1. LEEMING JA: I order that Mr Evans pay the respondent's costs of today.

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Decision last updated: 13 December 2013