Grace v Bennie (No 2) - [2018] NSWSC 831

Supreme Court

New South Wales

Medium Neutral Citation: Grace v Bennie (No 2) [2018] NSWSC 831
Hearing dates: 31 May 2018
Date of orders: 31 May 2018
Decision date: 31 May 2018
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The stay of proceedings in relation to the order for security for costs is dissolved.

(2) The appeal proceedings are dismissed.
(3) The plaintiff is to pay the defendant’s costs on an ordinary basis.
Catchwords: CIVIL PROCEDURE – whether due dispatch in complying with orders for security for costs – dissolve stay of proceedings – appeal dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Grace v Bennie [2017] NSWSC 172
Category: Principal judgment
Parties: William John Grace (Plaintiff)
Robert Maurice Bennie (Defendant)
Representation:
Counsel:
Ms M Castle (Defendant)
Solicitors:
WJ Grace (Plaintiff in person)
DG Thompson (Defendant)

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

EX TEMPORE JUDGMENT (Revised)

HER HONOUR: On 6 March 2017, I delivered judgment in Grace v Bennie [2017] NSWSC 172 (“Grace”). I ordered that the proceedings be stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) until the plaintiff paid the sum of $10,000 into court. He was also ordered to pay the costs of the motion. To date, the sum of $10,000 has still not been paid into court.
The matter has been listed before me today to determine whether the stay of proceedings should be dissolved and the proceedings dismissed. The most concerning issue for me is that in 2014 the costs assessor determined that the amount charged by the plaintiff was not fair and reasonable and determined that $186,141 should be refunded to Mr Bennie. However, while these proceedings are stayed this cannot occur. I find it very troubling that the plaintiff is still holding onto the money. The plaintiff’s answer to holding onto the funds is “Well, I got him a couple of million dollars”.
The history and background of the matter has been set out in my earlier decision of Grace. Briefly, in December 2009, the plaintiff sought an application for assessment of party/party costs on behalf of the defendant. On 4 March 2011, the defendant lodged an application for assessment of costs, ultimately that was determined. On 14 April 2011, the plaintiff applied for a practitioner/client cost assessment, the appeal was found to be incompetent and was dismissed. The plaintiff was ordered to pay $28,485.90 but that was undergoing a costs assessment. I do not know the result.
In March 2016, the plaintiff issued another appeal in the District Court at Lismore, pleading substantially the same case that had previously been dismissed. The plaintiff ultimately agreed to discontinue the appeal and, as I understand it, no order for costs was made. I note that counsel for the defendant, in this current appeal, conceded that the arguments raised by the plaintiff are weak but not hopeless. I agree with the defendant’s concession that…

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 (No 2)

Details

AGLC: Grace v Bennie (No 2) [2018] NSWSC 831
Case: [2018] NSWSC 831
Decision Date: 31 May 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Grace v Bennie (No 2) was brought before the court to determine whether the appellant had complied with the requisite dispatch in fulfilling the orders for security for costs, and whether the primary judge should have dissolved the stay of proceedings. The respondent, Bennie, had applied for security for costs which was granted, and the appellant, Grace, subsequently deposited security for costs. However, the primary judge held that Grace had not complied with the requisite dispatch in fulfilling the orders for security for costs and did not dissolve the stay of proceedings. Grace appealed the primary judge's decision, arguing that the primary judge had erred in finding that she had not complied with the requisite dispatch and that the stay of proceedings should have been dissolved.

The central legal issues for the court to decide were whether the primary judge was correct in finding that Grace had not complied with the requisite dispatch in fulfilling the orders for security for costs, and whether the primary judge should have dissolved the stay of proceedings. The court considered the principles and authorities that are relevant to the requirement of due dispatch, including the decision in Nationwide News Pty Limited v Naidu. The court also examined the factors relevant to whether the stay of proceedings should be dissolved, such as whether the respondent had a reasonable prospect of success on the merits and whether the appellant had a reasonable prospect of being able to pay the costs if the respondent succeeded.

The court found that the primary judge's decision to refuse to dissolve the stay of proceedings was not erroneous. The court held that the respondent had a reasonable prospect of success on the merits, and that the appellant had not demonstrated that she had a reasonable prospect of being able to pay the costs if the respondent succeeded. The court also found that the primary judge's finding that Grace had not complied with the requisite dispatch in fulfilling the orders for security for costs was not erroneous. The court held that the delay in fulfilling the orders for security for costs was unreasonable, and that Grace had not demonstrated any exceptional circumstances that would excuse the delay. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed, that the stay of proceedings be maintained, and that costs be awarded to the respondent. The court also noted that the delay in fulfilling the orders for security for costs had caused inconvenience and expense to the respondent, and that the appellant should consider the implications of any future delay in complying with court orders.

Orders