Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Hearing dates: 12 March 2019 Date of orders: 12 March 2019 Decision date: 14 March 2019 Before: Bell P;
Simpson AJADecision: Application for leave to appeal dismissed with costs.
Catchwords: CIVIL PROCEDURE – security for costs – whether primary judge’s discretion miscarried – relevance of delay in bringing application for security for costs where delay not shown to have caused prejudice – whether incurring of legal costs generates a presumption of prejudice – effect of Green v CGU Insurance Ltd [2008] NSWCA 148 Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170
Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
BE Financial Pty Ltd v Das [2012] NSWCA 164
CBX2 Pty Ltd v National Australia Bank Ltd [2016] NSWCA 79
Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
Cicek v The Estate of the Late Mark Solomon [2014] NSWCA 278
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Green v CGU Insurance Limited [2008] NSWCA 148; 67 ACSR 105
House v R (1936) 55 CLR 499
In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Mei Zhang v Ye Cheng [2018] NSWCA 299
Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) [2011] FCAFC 117
PPK Willoughby Pty Ltd v Baird [2018] NSWSC 1889
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; 117 ACSR 176
Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174Category: Procedural and other rulings Parties: PPK Willoughby Pty Ltd (Applicant)
David Baird and 104 others (1st to 105th Respondent)
Roads and Maritime Services (106th Respondent)
Minister administering the Environmental Planning and Assessment Act 1979 (107th Respondent)Representation: Counsel:
Solicitors:
M Green SC, A D Crossland (Applicant)
T M Faulkner SC (2nd to 105th Respondent)
A Shearer, J Burnett (106th and 107th Respondent)
Coleman Greig Lawyers (Applicant)
Gilchrist Connell Lawyers (1st to 105th Respondent)
Crown Solicitor’s Office (106th and 107th Respondent)
File Number(s): 2019/7409 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law
- Citation:
- [2018] NSWSC 1889
- Date of Decision:
- 11 December 2018
- Before:
- Harrison J
- File Number(s):
- 2012/163736
Judgment
-
THE COURT: Application for leave to appeal is made from a judgment of Harrison J sitting in the Common Law Division of the Supreme Court of New South Wales (PPK Willoughby Pty Ltd v Baird [2018] NSWSC 1889) in which his Honour ordered the Plaintiff,…
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Details
- Case
- [2019] NSWCA 48
- Decision Date
CaseChat Overview and Summary
PPK Willoughby Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge who had refused an application for security for costs made by Baird (the respondent). The dispute concerned whether the primary judge had erred in exercising their discretion to refuse security for costs.
The central legal issue before the Court of Appeal was whether the primary judge had miscarried in their discretion by refusing to order security for costs. This involved considering the relevance of delay in bringing an application for security for costs, particularly where no prejudice had been demonstrated to have arisen from that delay. The Court also had to consider whether the mere incurring of legal costs by a defendant generates a presumption of prejudice, and the effect of the decision in *Green v CGU Insurance Ltd* [2008] NSWCA 148 on these considerations.
Bell P and Simpson AJA held that the primary judge’s discretion had not miscarried. Their Honours noted that while delay in seeking security for costs can be a relevant factor, it is not determinative, especially where no prejudice has been shown to have been caused by the delay. The Court affirmed that the mere incurring of legal costs does not, in itself, create a presumption of prejudice sufficient to warrant an order for security for costs. The principles established in *Green v CGU Insurance Ltd* were applied, emphasizing that the court must consider all relevant circumstances when exercising its discretion.
The application for leave to appeal was dismissed with costs.
The central legal issue before the Court of Appeal was whether the primary judge had miscarried in their discretion by refusing to order security for costs. This involved considering the relevance of delay in bringing an application for security for costs, particularly where no prejudice had been demonstrated to have arisen from that delay. The Court also had to consider whether the mere incurring of legal costs by a defendant generates a presumption of prejudice, and the effect of the decision in *Green v CGU Insurance Ltd* [2008] NSWCA 148 on these considerations.
Bell P and Simpson AJA held that the primary judge’s discretion had not miscarried. Their Honours noted that while delay in seeking security for costs can be a relevant factor, it is not determinative, especially where no prejudice has been shown to have been caused by the delay. The Court affirmed that the mere incurring of legal costs does not, in itself, create a presumption of prejudice sufficient to warrant an order for security for costs. The principles established in *Green v CGU Insurance Ltd* were applied, emphasizing that the court must consider all relevant circumstances when exercising its discretion.
The application for leave to appeal was dismissed with costs.
Orders
Orders of the court
Application for leave to appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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