Johnson v Hone & Anor (No.2) - [2025] NSWDC 395

District Court

New South Wales

Medium Neutral Citation: Johnson v Hone & Anor (No.2) [2025] NSWDC 395
Hearing dates: 18, 25 and 29 September 2025
Date of orders: 29 September 2025
Decision date: 29 September 2025
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(1) Pursuant to Part 42.21(3) of the Uniform Civil Procedure Rules 2005 that the Amended Statement of Claim filed 23 May 2025 be dismissed.
(2) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendants’ cost in the gross sum $85,052.16.

Catchwords:
COSTS – plaintiff fails to pay first tranche of payments for security for costs despite two adjournments – plaintiff leaves jurisdiction and refuses to give a full address for his place of residence overseas – application by defendants for dismissal of cause of action granted – costs – application for gross sum costs order – no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98(4)(c)
Uniform Civil Procedure Rules 2005 r 42.21

Cases Cited:
Abi-Rizk v BB Dundas Pty Ltd in its capacity as Trustee of the BB Dundas Trust [2025] NSWSC 1063
Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82
Johnson v Hone [2025] NSWDC 319
Mananti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185
Tripod Fund Management Pty Ltd v Shao [2014] NSWSC 1722

Category: Procedural rulings
Parties:
Plaintiff:
Mr Toyin Johnson
Defendants:
First Defendant: Mr Michael Hone
Second Defendant: Ms Kate Macken
Representation:
Counsel:
Plaintiff: Mr W Finch (Solicitor for the plaintiff)
Defendants: Mr M Lewis

Solicitors:
Plaintiff: HFK Lawyers
Defendants: Baker Mckenzie

File Number(s): 2025/00167775
Publication restriction: Nil

Judgment

The application before the Court

On 19 August 2025 (see Johnson v Hone [2025] NSWDC 319) I made the following orders in relation to the defendants’ security for costs application:

“(1) An order pursuant to r 42.21(1) of the Uniform Civil Procedure Rules 2005 (NSW) that the Plaintiff provide security for the Defendants’ costs of this proceeding in the sum of $70,000 to be paid in two tranches as set out below.
(2) The first tranche of $25,000 is to be paid by 4 September 2025 and the second tranche of $45,000 is to be paid by 6 November 2025 in the manner set out in order 3 below.
(3) The plaintiff is to give such security on the dates set out in the previous order by either:
a. paying the above sum into Court on the respective dates; or
b. by delivering to the Registrar of the Court a bank guarantee for the payment of that sum issued by an Australian Bank; or
c. any other method agreed in writing by the parties.
(4) Apart from compliance with the requirement to file an Amended Statement of Claim (order 5 below), the proceedings be stayed until the Plaintiff has paid each of the above securities in accordance with Orders 1-2 above.
(5) The plaintiff is to file an Amended Statement of Claim setting…

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 Johnson v Hone & Anor (No.2)

Details

AGLC: Johnson v Hone & Anor (No.2) [2025] NSWDC 395
Case: [2025] NSWDC 395
Decision Date: 29 September 2025

CaseChat Overview and Summary

The case of Johnson v Hone & Anor (No.2) involved the plaintiff, Johnson, and two defendants, Hone and another. The dispute centred on the plaintiff's failure to comply with an order for security for costs, leading to the defendants seeking the dismissal of the plaintiff’s claim and an order for costs. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the plaintiff's failure to pay the required security for costs, despite being granted two adjournments to do so, warranted the dismissal of his claim. Additionally, the court had to determine the appropriate amount of costs to be awarded to the defendants under the Civil Procedure Act 2005 (NSW).

The court held that the plaintiff's failure to comply with the security for costs order, coupled with his departure from the jurisdiction and refusal to provide a full address, justified the dismissal of his claim. The court emphasised the importance of adhering to court orders and the necessity for parties to provide adequate information. In awarding costs, the court found no issue of principle in granting the defendants a gross sum order for costs in the amount of $85,052.16.

In light of the dismissal of the plaintiff's claim and the costs order, the court made orders pursuant to Part 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) that the Amended Statement of Claim be dismissed. Furthermore, under section 98 of the Civil Procedure Act 2005 (NSW), the plaintiff was ordered to pay the defendants’ costs in the gross sum of $85,052.16.

Orders

Orders of the court

Orders:

(1) Pursuant to Part 42.21(3) of the Uniform Civil Procedure Rules 2005 that the Amended Statement of Claim filed 23 May 2025 be dismissed.

(2) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendants’ cost in the gross sum $85,052.16.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Johnson v Hone & Anor (No.2) [2025] NSWDC 395
Hearing dates:	18, 25 and 29 September 2025
Date of orders:	29 September 2025
Decision date:	29 September 2025
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) Pursuant to Part 42.21(3) of the Uniform Civil Procedure Rules 2005 that the Amended Statement of Claim filed 23 May 2025 be dismissed. (2) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the defendants’ cost in the gross sum $85,052.16.
Catchwords:	COSTS – plaintiff fails to pay first tranche of payments for security for costs despite two adjournments – plaintiff leaves jurisdiction and refuses to give a full address for his place of residence overseas – application by defendants for dismissal of cause of action granted – costs – application for gross sum costs order – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98(4)(c) Uniform Civil Procedure Rules 2005 r 42.21
Cases Cited:	Abi-Rizk v BB Dundas Pty Ltd in its capacity as Trustee of the BB Dundas Trust [2025] NSWSC 1063 Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 Johnson v Hone [2025] NSWDC 319 Mananti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 Tripod Fund Management Pty Ltd v Shao [2014] NSWSC 1722
Category:	Procedural rulings
Parties:	Plaintiff: Mr Toyin Johnson Defendants: First Defendant: Mr Michael Hone Second Defendant: Ms Kate Macken
Representation:	Counsel: Plaintiff: Mr W Finch (Solicitor for the plaintiff) Defendants: Mr M Lewis Solicitors: Plaintiff: HFK Lawyers Defendants: Baker Mckenzie
File Number(s):	2025/00167775
Publication restriction:	Nil