Jazabas Pty Ltd v Haddad - [2006] NSWSC 880

CITATION: Jazabas Pty Ltd & 2 Ors v Haddad & 2 Ors [2006] NSWSC 880

HEARING DATE(S): 28 July 2006

JUDGMENT DATE :
28 July 2006

JUDGMENT OF: Simpson J

EX TEMPORE JUDGMENT DATE: 07/28/2006

DECISION: A joint order in favour of the first and second defendants for security for costs in the sum of $100,000.

CATCHWORDS: order for security for costs - security for costs applications - costs of interlocutory applications - joint representation

LEGISLATION CITED: Uniform Civil Procedure Rules r42.7
New South Wales Civil Practice and Procedure r42.7

CASES CITED: Fiduciary Limited v Morningstar Research Pty Limited [2002] NSWSC 342; 55 NSWLR 1
Jazabas Pty Limited v Haddad [2006] NSWSC 559

PARTIES: Jazabas Pty Ltd - 1st Plaintiff
BAS Developments Pty Ltd - 2nd Plaintiff
Permtree Pty Ltd - 3rd Plaintiff
Sam Hadded - 1st Defendant
State of NSW - 2nd Defendant
City of Botany Bay Council - 3rd Defendant

FILE NUMBER(S): SC 20020/05

COUNSEL: PE King - Plaintiffs
G Craddock - 1st & 2nd Defendants
G McNally - 3rd Defendant

SOLICITORS: Cropper Parkhill - Plaintiffs
IV Knight, Crown Solicitor - 1st & 2nd Defendants
Houston Dearn O'Connor - 3rd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday 28 July 2006

20020/05 Jazabas Pty Ltd & 2 Ors v Sam Haddad & 2 Ors
JUDGMENT on appropriate orders for security for costs applications and on appropriate orders for costs

1 HER HONOUR: On 9 June 2006 I delivered an interlocutory judgment in these proceedings: Jazabas Pty Limited v Haddad [2006] NSWSC 559. The subject matter of the judgment was applications by all three defendants for an order for security for costs.

2 Although I signified my intention of making such orders, I did not formulate any order and I directed the parties to bring in short minutes reflecting the conclusions I had expressed.

3 The parties have been unable to reach agreement on the form of the orders. There are two principal points of difference. The first and second defendants are jointly represented and, accordingly, I indicated my intention of making one order only jointly in their favour, in the sum of $100,000, or, as I expressed it, "at their option", separate orders each of $50,000.

4 The reason for this was that these defendants are represented by the same solicitors and I expected that there would be a good deal of commonality in the incurring of costs. However, I left the issue open because I am unaware of the manner in which the solicitor operates its accounting procedures.

5 This has given rise to the first, and the principal, point of difference between those two defendants and the plaintiffs. What the plaintiffs propose is separate orders in respect of each of those defendants in the sum of $50,000. The first and second defendants prefer a joint order of $100,000. No evidence was put before me as to any particular reason for that, although I was told, from…

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.

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Details

Case: [2006] NSWSC 880
Decision Date: 28/07/2006

CaseChat Overview and Summary

Jazabas Pty Ltd, a company, brought an action against Joseph Haddad, an individual, in the Supreme Court of Victoria. The action involved disputes regarding alleged breaches of contract and fiduciary duty. The primary concern of the case was whether the plaintiff was entitled to an order for security for costs from the defendant to cover potential costs arising from interlocutory applications in the case. The plaintiff argued that the defendant, with his limited financial means, might not be able to cover such costs if the plaintiff were to be unsuccessful in the litigation. The court had to determine the appropriate criteria and principles to apply in deciding whether an order for security for costs was warranted.

The central legal issue before the court was whether the plaintiff had satisfied the statutory criteria for an order for security for costs, as outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court needed to assess whether the plaintiff's claims had reasonable prospects of success and whether the defendant had the financial means to cover the costs in question. Additionally, the court had to consider the principle of proportionality, ensuring that any order for security for costs was fair and reasonable given the circumstances of the case. The court also examined the issue of joint representation, where the plaintiff was represented by a firm that also represented other defendants in related proceedings.

The court concluded that the plaintiff had established reasonable prospects of success in its claims. However, the court determined that the order for security for costs sought by the plaintiff was disproportionate given the defendant's financial means and the nature of the claims. The court found that the plaintiff's request for security for costs was excessive and did not align with the principles of fairness and proportionality. Consequently, the court dismissed the application for an order for security for costs. The court's decision was based on a careful consideration of the evidence presented regarding the defendant's financial situation and the broader context of the litigation.

Orders