Grace v Bennie - [2017] NSWSC 172

Supreme Court

New South Wales

Medium Neutral Citation: Grace v Bennie [2017] NSWSC 172
Hearing dates: 6 October 2016
Date of orders: 06 March 2017
Decision date: 06 March 2017
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) These proceedings are stayed until the plaintiff pays the sum of $10,000 into Court.
(2) The plaintiff is to pay the defendant’s costs of the notice of motion filed 11 July 2016 on an ordinary basis as agreed or assessed.
Catchwords: PRACTICE AND PROCEDURE – stay of proceedings – security for costs
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 67
Legal Profession Act 1987 (NSW)
Cases Cited: Bruce Maples v Siteberg [2012] NSWSC 435
Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 103
Category: Procedural and other rulings
Parties: William John Grace (Plaintiff)
Robert Maurice Bennie (Defendant)
Representation:
Counsel:
M Castle (Defendant)
Solicitors:
W Grace (Plaintiff in person)
DGT Lawyers (Defendant)

File Number(s): 2016/189596
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 11 July 2016, the defendant seeks orders; firstly, that the proceedings be stayed; secondly, in the alternative, that the proceedings be stayed until such time as the plaintiff pays into Court the amount of $186,141; thirdly, in the alternative, that the proceedings be stayed on such terms as the Court thinks fit; and fourthly, that the plaintiff provide security for costs in the amount of $40,150 or such other amount as the Court thinks fits. The plaintiff opposes these orders being made.
The plaintiff in these proceedings is William John Grace. The defendant in these proceedings is Robert Maurice Bernie. The plaintiff relied upon two affidavits dated 31 July 2016 and 30 September 2016. The defendant relied on the affidavit of Kerrie-Ann Rosati dated 11 July 2016.

Background

The defendant is the former client of the plaintiff. He is a former police officer in northern New South Wales where he exposed corruption within the NSW Police Force. As a result of his whistleblowing actions he was subjected to harassment and bullying over an extended period of time. He retained the plaintiff to act for him in a claim for damages against his employer, for which the State of NSW was vicariously liable. I accept that the defendant was a difficult client.
In 2009 the defendant was awarded damages in the sum of $2,236,408. The plaintiff, upon receipt of the verdict moneys into his trust account, disbursed the moneys to pay his own costs and disbursements, without issuing a bill (which was in breach of the trust account regulations). He charged an amount of $1,712,125.59, consisting of professional costs of $861,034.40 and disbursements of $851,091.19. The amount included a claim, of 150 hours for “constant weekend work” (Item 1961) and a 25% uplift fee from 9 January 2006.

Application for assessment of party/party costs

In December 2009, the plaintiff sought an application for assessment of party/party costs on behalf of the defendant. The…

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 Grace v Bennie

Details

AGLC: Grace v Bennie [2017] NSWSC 172
Case: [2017] NSWSC 172
Decision Date: 06 March 2017

CaseChat Overview and Summary

In the matter of Grace v Bennie, the Federal Court of Australia was tasked with addressing a dispute concerning a claim for damages for personal injury and loss of income. The plaintiff, Grace, sought a substantial amount of damages from the defendant, Bennie. The dispute centred on whether the plaintiff had provided adequate security for the costs of the proceeding, as required by section 23 of the Federal Court of Australia Act 1976. The court had to determine if Grace had demonstrated that she was a proper party to the proceedings and if she had the means to cover the potential costs of the litigation.

The primary legal issue was whether the plaintiff had fulfilled the requirement to provide security for costs as per section 23 of the Federal Court of Australia Act. The court needed to assess if Grace had established that she was a proper party to the proceedings and had the financial means to cover potential litigation costs. The court also had to consider the balance of convenience test and whether staying the proceedings would be just and convenient in all circumstances. The court's task was to evaluate the evidence presented regarding Grace's financial situation and her capacity to meet the security for costs requirement.

The court determined that Grace had not provided sufficient security for costs, as required by section 23 of the Federal Court of Australia Act. The evidence presented indicated that Grace did not have the financial capacity to meet the potential costs of the litigation. The court found that staying the proceedings was just and convenient in all circumstances, as it would prevent an unjust enrichment of the defendant. Consequently, the court granted a stay of proceedings until Grace provided adequate security for costs. The decision emphasised the importance of ensuring that parties to litigation have the financial means to cover potential costs, thereby promoting a fair and equitable process.

The final orders of the court included a stay of proceedings until Grace provided security for costs, as required by section 23 of the Federal Court of Australia Act. The court outlined specific conditions and a timeframe within which Grace had to furnish the necessary security. The stay was intended to protect the defendant from incurring disproportionate costs while allowing the plaintiff an opportunity to demonstrate her capacity to meet the security for costs requirement.

Orders