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Sywak v Visnic [No 2]

Sywak v Visnic [No 2]

Case [2010] NSWSC 374 30 April 2010

Civil Litigation & Procedure

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CITATION: Sywak v Visnic [No 2] [2010] NSWSC 374

HEARING DATE(S): 1 April 2010

JUDGMENT DATE :
30 April 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: ORDERS:
1. Dismiss the defendant’s amended notice of motion; and,
2. Order the defendant to pay the plaintiff’s costs of the amended notice of motion.

CATCHWORDS: PROCEDURE - costs - defendant/applicant seeks security for costs - plaintiff/respondent natural person resident in NSW - inherent jurisdiction of Court to make orders for security for costs - whether the plaintiff's claim is bona fide and not a sham - whether the plaintiff has a reasonably good prospect of obtaining the orders sought - whether the plaintiff's action is harassing or vexatious - failure to have the costs orders quantified or assessed - defendant cannot establish that the plaintiff has failed to honour existing costs orders - plaintiff’s case is not so unmeritorious that a security for costs order should be made - defendant to pay the plaintiff’s costs of the motion

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) s 67
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.21

CATEGORY: Consequential orders

CASES CITED: Byrnes v John Fairfax Publications Pty Limited [2006] NSWSC 251
Friend v Brooker [2009] HCA 21
Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 744
Morris v Hanley [2000] NSWSC 957
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Sywak v Visnic [2010] NSWSC 222
Visnic v Sywak & Ors [2007] NSWSC 701
Visnic v Sywak [2008] NSWSC 427
Visnic v Sywak [2009] NSWCA 173

PARTIES: Plaintiff/Respondent: Peter Orest Sywak
Defendant/Applicant: Milan Visnic

FILE NUMBER(S): SC 1146/09

COUNSEL: Plaintiff/Respondent: Mr H Stitt
Defendant/Applicant: Mr A Street SC & Mr R Carruthers

SOLICITORS:
Plaintiff/Respondent: Polczynski Lawyers
Defendant/Applicant: Lander & Rogers Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

FRIDAY 30 APRIL 2010

1146/09 Sywak v Visnic [No 2]

JUDGMENT (Security for Costs)

1 HIS HONOUR: On 5 March 2010 I gave my first judgment on the amended notice of motion in this matter: Sywak v Visnic [2010] NSWSC 222. In that judgment I dismissed paragraphs 2 and 3 of the defendant/applicant’s, Mr Visnic’s, notice of motion. Now I have been asked to consider the relief claimed in paragraph 1 of the defendant/applicant's notice of motion and issues of costs.

Security for Costs

2 The defendant/applicant seeks security for its costs in these proceedings. This is an unusual application for security. It does not fall within any of the categories provided for in r 42.21 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The plaintiff/respondent is neither a corporation nor a person ordinarily resident outside Australia, nor is there any evidence that the plaintiff is suing on behalf of another person. The plaintiff is a natural person resident in New South Wales.

3 Mr Street SC submits for the defendant on the motion that even in these circumstances there is power in the Court's inherent jurisdiction to award security for…

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 Sywak v Visnic [No 2]

Details

AGLC: Sywak v Visnic [No 2] [2010] NSWSC 374
Case: [2010] NSWSC 374
Decision Date: 30 April 2010

CaseChat Overview and Summary

The proceeding Sywak v Visnic [No 2] concerned a defendant's application for security for costs against a plaintiff who resided in New South Wales. The plaintiff, Sywak, had already filed a previous lawsuit against the defendant, Visnic. The current application for security for costs was brought before the court to determine whether the plaintiff's claim was bona fide, whether the plaintiff had a reasonably good prospect of success, and whether the plaintiff's action was harassing or vexatious. The court was required to consider the inherent jurisdiction to make orders for security for costs, as well as the plaintiff's ability to honour any existing costs orders.

The court examined the plaintiff's claim to determine its merit and whether it was genuine or a sham. It was noted that the plaintiff's case was not so unmeritorious that a security for costs order should be made, as the defendant had not established that the plaintiff had failed to honour any existing costs orders. Additionally, the court considered whether the plaintiff's action was harassing or vexatious, which would also be a factor in determining whether an order for security for costs should be made. Ultimately, the court found that the plaintiff's case was not so unmeritorious that a security for costs order should be made.

The court determined that the defendant was not entitled to the security for costs and dismissed the application. The court found that the plaintiff's claim was not harassing or vexatious, and there was no evidence to suggest that the plaintiff had failed to honour any existing costs orders. As a result, the court ordered that the defendant pay the plaintiff's costs of the motion. The court's decision underscores the importance of ensuring that the plaintiff's claim is genuinely bona fide and not a sham, and that the plaintiff has a reasonably good prospect of success, before making an order for security for costs.

Orders