Mongey v Demetriou - [2019] NSWSC 444

Supreme Court

New South Wales

Medium Neutral Citation: Mongey v Demetriou [2019] NSWSC 444
Hearing dates: 16 April 2019
Date of orders: 23 April 2019
Decision date: 23 April 2019
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1)    Order the plaintiff within 28 days to provide security for the costs of the second defendant in the amount of $50,000 in a form suitable to the second defendant and to the Court.
(2)    Stay the proceedings pending compliance by the plaintiff with order (1).
(3)    Order that the costs of this application should be the costs in the proceedings.

Catchwords: COSTS – security for costs – where plaintiff is resident in Ireland and has no assets in NSW – where defendant’s motion for security for costs was filed almost eleven months after proceedings commenced by plaintiff – whether there is material to enhance the value of the presumption of prejudice flowing from the defendant’s delay in brining security for costs application – whether the balance of competing factors weights in favour of the defendant – plaintiff to provide security for costs.
Legislation Cited: Civil Procedure Act 2005 NSW, s 100
Contracts Review Act 1900 NSW, s 7
Uniform Civil Procedure Rules 2005 NSW, 42.21
Cases Cited: Commissioner of Taxation Vasiliades (2016) 344 ALR 558
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148
Morris v Hanley [2001] NSWCA 374
Ollerenshaw v The Uniting Church in Australia Property Trust (NSW) [2017] NSWSC 1637
Pilkin v Sony Australia Ltd [2018] FCA 1018
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36
Category: Procedural and other rulings
Parties: Thomas Raymond Mongey (Plaintiff)
Janette Ashley (Second Defendant)
Representation:
Counsel:
M W Sneddon (Plaintiff)
Solicitors:
Blunden & Montgomery (Plaintiff)
Marc Ryckmans, Somerset Ryckmans (Second Defendant)

File Number(s): 2018/102898
Publication restriction: Nil

Judgment

HIS HONOUR: By notice of motion dated 15 March 2019, the second defendant moves the Court for an order pursuant to UCPR 42.21(1)(a) that the plaintiff provide security for her costs upon the basis that he is ordinarily resident outside Australia. It is not in dispute that the plaintiff is ordinarily resident in Dublin, Ireland.
UCPR 42.21(1)(a) provides as follows:

“42.21 Security for costs
(1) If, in any proceedings, it appears to the court on the application of a defendant:
(a) that a plaintiff is ordinarily resident outside Australia,
…

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given.”

The proceedings were commenced by statement of claim filed on 3 April 2018. The plaintiff sues upon an agreement for loan made on or about 8 October 2010. He alleges that he advanced the sum of $600,000 to the defendants on terms that the…

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 Mongey v Demetriou

Details

AGLC: Mongey v Demetriou [2019] NSWSC 444
Case: [2019] NSWSC 444
Decision Date: 23 April 2019

CaseChat Overview and Summary

The case of Mongey v Demetriou involved the plaintiff, a resident of Ireland, and the defendant, contesting an order for security for costs in the Supreme Court of New South Wales. The plaintiff commenced proceedings against the defendant, seeking to recover damages for a debt. The defendant, almost eleven months after the initiation of the proceedings, filed a motion for security for costs, arguing that the plaintiff's residence outside New South Wales and lack of assets in the jurisdiction increased the risk of prejudice should the plaintiff abandon the proceedings.

The court was tasked with determining whether the delay in filing the application for security for costs constituted material that could enhance the presumption of prejudice, and whether the balance of competing factors favoured the defendant's application. The plaintiff argued that the delay prejudiced the defendant's case, while the defendant countered that the plaintiff's lack of assets in New South Wales and residence abroad heightened the risk of prejudice if the defendant were compelled to proceed without security.

The court found that the plaintiff's lack of assets in New South Wales and residency in Ireland, coupled with the delay in filing the application, constituted material that enhanced the presumption of prejudice. Despite the delay, the court considered that the balance of competing factors, including the plaintiff's ability to pursue the action without financial resources within the jurisdiction, weighed in favour of the defendant. Consequently, the court ordered the plaintiff to provide security for costs.

In conclusion, the court's decision mandated the plaintiff to provide security for costs, balancing the delay in filing the application against the plaintiff's lack of assets and residency outside New South Wales. The court emphasised that the absence of assets and the foreign residency significantly increased the risk of prejudice, justifying the order for security.

Orders