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)

1. 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.

2. 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”.

3. 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.

4. 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 the chances of success on appeal are weak but perhaps not hopeless.

5. The plaintiff now appears over a year later and has been asked to explain why the proceedings should not be dismissed pursuant to UCPR 12.7, that is if the plaintiff does not prosecute the proceedings with due dispatch, the Court may order that the proceedings be dismissed or make such order as the Court thinks fit.

6. The plaintiff is no longer a solicitor. Apparently three months after the decision of Grace was handed down on 6 March 2017 (over a year ago), he had his Practising Certificate withdrawn. He appears today as a former solicitor with no affidavit evidence to explain the delay in lodging the $10,000 for security for costs. He has told the Court that he does not know what he is here for. I have difficulty believing this.

7. By way of explanation as to why I should not make the order dismissing the proceedings, the plaintiff offers the following explanation. Even though the plaintiff has not relied on any affidavit evidence, I have accepted his submission at face value that his wife is willing to lend him the money but this will depend upon a boundary adjustment on her property being approved by council. Once approved, she will be able to sell a piece of land to the purchaser. However, the approval has run into some difficulty with the council due to a bridge having to be erected. The plaintiff says that the purchase could be complete by the end of the year. The plaintiff also says that he was saving money but has been ill in hospital for a month and those funds were expended on his hospitalisation. Currently, he says that he does not have any money.

8. It is my view that for the plaintiff to be able to obtain $10,000 is dependent upon his wife lending him the money; the boundary adjustment approval being made; and for the purchase to go through. Although the plaintiff has not provided any affidavit evidence, it may not be until the end of the year at the earliest. The defendant has proceedings in the District Court to obtain judgment on the certificate. It is due to be heard on 1 August 2018.

9. In my view there has not been due dispatch in complying with the orders for security for costs. In fact, there has been a delay of 12 months when normally a party would be given 28 days to pay the $10,000. The defendant has been without his money for 12 months. The plaintiff was been given more than adequate time to satisfy the order for security for cots It is most likely that the order for security for costs will not be complied within the next 12 months. In these circumstances I propose to dissolve the stay of proceedings until security is lodged and dismiss the appeal.

10. As to costs, I will apply the normal rule and that is costs follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.

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.

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