Fleming v Marshall - [2010] NSWCA 356

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Fleming v Marshall [2010] NSWCA 356
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2010/62931

HEARING DATE(S):
10 December 2010

EX TEMPORE DATE:
10 December 2010

PARTIES:
Francis G Fleming (First Appellant)
Marc S Moller (Second Appellant)
Steven R Pounian (Third Appellant)
James P Kreindler (Fourth Appellant)
David C Cook (Fifth Appellant)
David Beekman (Sixth Appellant)
Bianca I Rodriguez (Seventh Appellant)
Noah H Kushlefsky (Eighth Appellant)
Robert J Spragg (Ninth Appellant)
Brian J Alexander (Tenth Appellant)
Justin T Green (Eleventh Appellant)
Margaret Lesley Marshall (First Respondent)
Kim Neil Marshall (Second Respondent)

JUDGMENT OF:
Macfarlan JA Sackville AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2009/11113

LOWER COURT JUDICIAL OFFICER:
Rothman J

LOWER COURT DATE OF DECISION:
19 February 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
Marshall v Fleming [2010] NSWSC 86

COUNSEL:
P Braham SC/E Bishop (Appellants)
C J Bevan (Respondents)

SOLICITORS:
Kennedys (Appellants)
Turner Freeman (Respondents)

CATCHWORDS:
PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules rr 51.50 and 42.21 - security for costs of appeal against refusal to stay proceedings on the forum non conveniens basis - whether "special circumstances" established - whether foreign appellants should be required to provide security before issue of forum resolved

LEGISLATION CITED:
Uniform Civil Procedure Rules

CATEGORY:
Procedural and other rulings

CASES CITED:
Charara v Integrex Pty Ltd [2010] NSWCA 342
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Transglobal Capital v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143

TEXTS CITED:

DECISION:
Subject to the orders made by Handley AJA, the Notice of Motion is dismissed with costs, including such costs of the Notice of Motion as were reserved by Handley AJA.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2010/62931
MACFARLAN JA
SACKVILLE AJA
10 DECEMBER 2010

FLEMING v MARSHALL

Judgment – Security for Costs

MACFARLAN JA: Earlier this morning the Court granted leave to appeal from the decision of Rothman J of 19 February 2010 in this matter and fixed the appeal for hearing on 25 February 2011. The proceedings are ones in which the respondents claim damages from the appellants, who are New York attorneys, for breach of contract and of tortious duty of care, and for conspiracy. It remains for the Court to deal with that part of the respondents’ Notice of Motion filed on 10 June 2010 that sought an order that the appellants provide security for costs of the proceedings in this Court.
Power to order security in respect of the costs of an appeal is conferred by the Uniform Civil Procedure Rules r 51.50. This rule permits security to be ordered only where “special circumstances” exist. The rule provides that the Court’s general powers to order security, under r 42.21, are not affected by the rule. However I consider that where the question is whether security should be ordered for the costs of…

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 Fleming v Marshall

Details

AGLC: Fleming v Marshall [2010] NSWCA 356
Case: [2010] NSWCA 356
Decision Date: 10 December 2010

CaseChat Overview and Summary

In *Fleming v Marshall*, the appellants sought to appeal a decision refusing to stay proceedings on the grounds of *forum non conveniens*. The respondents applied for security for the costs of the appeal pursuant to rule 51.50 of the Uniform Civil Procedure Rules. The primary question before the court was whether "special circumstances" existed to justify requiring the foreign appellants to provide security for costs before the issue of the forum of litigation was resolved.

The court was required to determine whether the appellants, as foreign litigants, should be compelled to provide security for the costs of the appeal. This involved considering the application of rule 51.50 and rule 42.21 of the Uniform Civil Procedure Rules, and whether the circumstances of the case met the threshold for "special circumstances" that would warrant an order for security for costs.

The court reasoned that the discretion to order security for costs under rule 51.50 should be exercised cautiously, particularly when the underlying appeal concerned the fundamental issue of the appropriate forum. It was held that the mere fact that the appellants were foreign litigants was not, in itself, a special circumstance justifying an order for security for costs. The court considered the potential impact of such an order on the appellants' ability to pursue their appeal and the broader principles of access to justice.

The Notice of Motion for security for costs was dismissed, with the appellants ordered to pay the respondents' costs of the motion, including any costs previously reserved.

Orders

Orders of the court

Subject to the orders made by Handley AJA, the Notice of Motion is dismissed with costs, including such costs of the Notice of Motion as were reserved by Handley AJA.

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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