King v Liverpool City Council - [2017] NSWSC 1148

Supreme Court

New South Wales

Medium Neutral Citation: King v Liverpool City Council [2017] NSWSC 1148
Hearing dates: 24 August 2017
Date of orders: 24 August 2017
Decision date: 24 August 2017
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Order the plaintiff to provide security for costs of the defendant as follows:
(a)   by depositing into an agreed deposit account the sum of $100,000 within 21 days;
(b)   the only authorised signatories capable of operating such account are to be Mr Stephen Taylor-Jones and Mr David Marocchi jointly;
(c)   the plaintiff is to file an affidavit within 21 days containing an undertaking to the Court that he will not sell, encumber or otherwise dispose of his property or any interest in his property at 47 Rickard Rd, Chipping Norton, New South Wales without first giving 14 days' written notice of his intention so to do to the solicitors for the defendant.
(2)   Order that if security for costs is not provided as specified that the proceedings are stayed.
(3)   Grant the parties liberty to apply with respect to these orders on 24 hours' notice.
(4)   Order the plaintiff to pay the defendant's costs of the Motion.
(5)   List the matter for directions at 9.30am on Thursday 28 September 2017 before Garling J.

Catchwords: CIVIL PROCEDURE – security for costs –inherent jurisdiction of the Court – principle of fairness
Legislation Cited: Civil Liability Act 2002
Uniform Civil Procedure Rules 2005
Cases Cited: Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11
Insight Vacations Pty Ltd v Young [2010] NSWCA 137
Madgwick v Kelly [2013] FCAFC 61
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Bernard King (P)
Liverpool City Council (D)
Representation:
Counsel:
M J Gollan (P)
A Abadee (D)
Solicitors:
Paramount Compensation Lawyers (P)
Moray & Agnew (D)

File Number(s): 2016/169197
Publication restriction: Not Applicable

EX TEMPORE Judgment

By Notice of Motion dated 26 June 2017 and filed by the defendant, Liverpool City Council, the Council seeks orders for security for costs against the plaintiff, Bernard King.
The proceedings in which the Motion is brought are representative proceedings brought by the plaintiff against the Council on behalf of himself and a group of owners and occupiers of a number of properties in Chipping Norton in New South Wales. The members of the group are those nominated in Annexure A to the Amended Statement of Claim. In total, in addition to the plaintiffs, there are 41 named individuals. However, it does appear from the Statement of Claim itself that the number of properties the subject of the claim are considerably fewer. In other words, a number of the group members jointly own the relevant property.
The plaintiff claims that in or about June 2014, the Council caused soil contaminated with asbestos to be dumped in the area outside the homes of the plaintiff and group members. It is alleged that such conduct constituted a cause of action in negligence and also in nuisance. It is claimed…

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.

Keep reading for free

Create a free CaseChat account to read King v Liverpool City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 1148
Decision Date: 24 August 2017

CaseChat Overview and Summary

In the case of King v Liverpool City Council, the plaintiff sought damages for personal injuries sustained during a fall at the defendant's premises. The defendant sought security for costs, claiming it was an indigent local council, which the plaintiff opposed on the grounds that the defendant had sufficient assets overseas. The matter was heard in the Supreme Court of New South Wales. The central legal issue was whether the defendant's overseas assets could be considered in determining its financial capacity to meet the plaintiff's potential costs. Additionally, the court had to assess whether the defendant's application for security for costs was fair and reasonable in the circumstances.

The court considered the principles of fairness in assessing the defendant's financial capacity, noting that the defendant's primary obligation was to ensure public services rather than to maintain funds to cover potential litigation costs. It was held that the defendant's overseas assets, which were not readily accessible or convertible into Australian currency, should not be taken into account. The court concluded that the principle of fairness necessitated a balanced approach, weighing the defendant's public service obligations against its capacity to pay costs. Given these considerations, the court determined that the application for security for costs was not fair and reasonable, and thus, the application was dismissed.

Orders