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Gabriel v Grech

Gabriel v Grech

Case [2019] NSWSC 1163 11 September 2019

Standing

Limitation Periods

Security for Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Gabriel v Grech [2019] NSWSC 1163
Hearing dates: 14 August 2019
Date of orders: 11 September 2019
Decision date: 11 September 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The cross defendant’s application for security for costs is refused.

(2) The cross defendant is granted leave to file and serve a notice of contention as set out in paragraph [23] of its submissions.

(3) The notice of contention is to be filed and served within 14 days.

(4) Access is granted to both parties to the Local Court file, including the exhibits.

(5) Costs of the cross defendant’s amended notice of motion filed 21 May 2019 are reserved.
(6) The matter is listed for directions at 9.00 am on 2 October 2019 before the Registrar.
Catchwords: PRACTICE AND PROCEDURE – Security for costs – Uniform Civil Procedure Rules 2005 (NSW) r 50.8 – Where the plaintiff is impecunious – Application for leave to file a notice of contention
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 50, 56, 57, 58, 60
Local Court Act 2007 (NSW), ss 39, 40, 41
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 50.11, 50.8
Cases Cited: Charara v lntegrex Pty Ltd [2010] NSWCA 342
Fleming v Marshall [2010] NSWCA 152
Gabriel v Grech [2018] NSWSC 1652
Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362
Harrison v Retail Employees Superannuation Pty Limited and Anor [2015] NSWSC 1665
In the Matter of Felon’s Fisheries Pty Limited [2016] NSWSC 1351
Labour Power Recruitment Services Pty limited v No/land [2019] NSWSC 512
Labourpower Recruitment Services Pty Limited v Nolland [2019] NSWSC 512
Leighton International v Hodges [2012] NSWSC 458
Living Spring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93
Preston v Harbor Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Seas Sap/or Ltd and Anor v Far Eastern Shipping Company, [1995] NSWSC, 31 August 1995
The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502
Vetter v Lake Macquarie City Council [2001] HCA 12 202 CLR 439; 75 AUR 578; 178 ALR 1
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Young v Cooke [2018] NSWSC 588
Category: Procedural and other rulings
Parties: Joseph Gabriel (Plaintiff)
Paul Grech (First Defendant)
Drive MY Car Rentals Pty Ltd (Second Defendant)
Representation:
Counsel:
S Baron Levi (Plaintiff)
P Barham (Second Defendant)
Solicitors:
William Roberts Lawyers (Plaintiff)
Fraser Clancy Lawyers (Second Defendant)

File Number(s): 2017/273635
Publication restriction: Nil

Judgment

HER HONOUR: By amended notice of motion filed 21 May 2019, the second defendant seeks orders firstly, pursuant to either r 50.8 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and/or the inherent jurisdiction of the Court, that the plaintiff within 21 days of this order provide security for the second defendant’s costs in the sum of $157,594 or such other lesser amount as the Court may deem fit, either by…

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 Gabriel v Grech

Details

AGLC: Gabriel v Grech [2019] NSWSC 1163
Case: [2019] NSWSC 1163
Decision Date: 11 September 2019

CaseChat Overview and Summary

The parties involved in the case were Gabriel and Grech. Gabriel, the plaintiff, was seeking damages against Grech, the defendant, for personal injuries sustained in a car accident. The dispute centred around the plaintiff's ability to afford the security for costs required under the Uniform Civil Procedure Rules 2005 (NSW) r 50.8. The case was heard in the Supreme Court of New South Wales. Gabriel, who was impecunious, applied for leave to file a notice of contention to challenge the defendant's security for costs application.

The primary legal issue before the court was whether Gabriel, being impecunious, was entitled to challenge the defendant's security for costs application under r 50.8 of the Uniform Civil Procedure Rules. The court was required to determine whether Gabriel's financial circumstances were sufficient grounds to allow the application for leave to file a notice of contention.

The court, in its reasoning, considered the financial situation of the plaintiff and the provisions of r 50.8. It held that an impecunious plaintiff could indeed apply for leave to file a notice of contention. The court noted that the rule was designed to provide a safeguard for impecunious plaintiffs, allowing them to challenge the defendant's security for costs application. The court found that Gabriel's financial situation met the criteria for being considered impecunious and granted the application for leave to file a notice of contention. The court's decision was based on the premise that the uniform civil procedure rules must be interpreted in a way that ensures fair access to the courts for all parties, especially those who are financially disadvantaged.

As a result of the court's decision, Gabriel was granted leave to file a notice of contention, allowing them to challenge the defendant's security for costs application. This ruling ensures that impecunious plaintiffs have the opportunity to contest the amount of security for costs required, thereby maintaining the balance of fairness in the legal process.

Orders