Llorente v Marshall Bodyguard and Security P/L (No 2)

[2017] NSWSC 1292

Supreme Court

New South Wales

Medium Neutral Citation:

Llorente v Marshall Bodyguard & Security P/L (No 2) [2017] NSWSC 1292

Hearing dates:

26 September 2017

Date of orders:

26 September 2017

Decision date:

26 September 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The cross-claims filed in the proceedings are dismissed.

 

(2) The cross-claimants are to pay the cross defendants' costs of those cross-claims.

 (3) I vacate the hearing date of 16 October 2017.

Catchwords:

PRACTICE AND PROCEDURE – Where order made for security to be lodged – Order not complied with – Proceedings dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Llorente v Marshall Bodyguard & Security P/L (No 1) [2017] NSWSC 1212

Category:

Principal judgment

Parties:

Raquel Allison Llorente - Plaintiff
Marshall Bodyguard & Security P/L – Defendant
Aida Castillo; William Duque Garcia - Cross-claimants
Raquel Allison Llorente; Dylan Llorente - Cross-defendants

Representation:

Counsel:
R Hanrahan – Cross-claimants / Respondents
D R Hooke SC – Cross-defendants / Applicants

  Solicitors:
Macarthur Law Group P/L - Cross–claimants / Respondents
Beilby Poulden Costello – Cross-defendants / Applicants

File Number(s):

2013/00380377

Publication restriction:

Nil

Judgment – EX TEMPORE (REVISED)

1. On 11 September 2017 I made orders pursuant to r 42.21 of the Uniform Civil Procedural Rules 2005 (NSW) requiring the cross-claimants to give security in the sum of $50,000 in respect of the costs of the cross-defendants: Llorente v Marshall Bodyguard & Security P/L (No 1) [2017] NSWSC 1212. I further ordered that the security be paid into Court by 5pm yesterday.

2. I listed the matter for further directions before me today to ascertain whether or not the security had been lodged. I foreshadowed (at [27] of my previous judgment) that in the event that the security was not lodged by the stipulated time, a stay of the proceedings would prima facie appear to be appropriate, subject to hearing any further submissions from either party.

3. When the matter came before me today I was informed by Mr Hooke SC who appeared for the cross-defendants that the security had not been lodged. The solicitor for the cross-claimants confirmed that to be the case. He also confirmed that at the present time, there was no intention on the part of the cross-claimant to comply with the orders that I had made and lodge the security, and that he had instructions to withdraw from the proceedings. He further indicated that he did not wish to make any submissions against an order being made that the cross-claims be dismissed, and submitted that in that event, I should make an order that each party pay its own costs.

4. Mr Hooke SC sought an order that the cross-claims be dismissed. He submitted that in the circumstances this was the appropriate order as opposed to a stay, the latter order having the effect of the proceedings, as it were, hanging over the heads of the cross-defendants. In the event that I determined that the cross-claims should be dismissed, Mr Hooke SC sought an order for costs.

5. It seems to me that there is merit in the submissions advanced by senior counsel as to the disposal of the proceedings. On the basis of what I have been told this morning, there is absolutely no intention on the part of the cross-claimants to comply with the order I have made requiring the security to be lodged. In these circumstances, there is no reason why the cross-claims ought not be dismissed. As I have noted, the cross-claimants' solicitor made no submission to the contrary.

6. As far as costs are concerned, there is no reason why costs ought not follow the event. Accordingly I make the following orders:

1. The cross-claims filed in the proceedings are dismissed.

2. The cross-claimants are to pay the cross‑defendants' costs of those cross-claims.

3. I vacate the hearing date of 16 October 2017.

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Decision last updated: 07 November 2017