Tomic v Parker - [2021] NSWSC 523

Supreme Court

New South Wales

Medium Neutral Citation: Tomic v Parker [2021] NSWSC 523
Hearing dates: 28 May 2020
Decision date: 17 May 2021
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Dismiss the proceedings pursuant to r 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW);
(2) The plaintiffs to pay the defendant’s costs of and incidental to the proceedings, including reserved costs;
(3) The plaintiffs to pay the defendant’s costs of and incidental to the defendant’s notice of motion filed 12 February 2020.

Catchwords:
CIVIL PROCEDURE – Failure to pay security for costs – Application for dismissal of proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 58, 61
Uniform Civil Procedure Rules 2005 (NSW), r 42.21

Cases Cited:
Greywolf Resources NL v Wilkinson [2011] NSWSC 1604
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Idoport Pty Limited v National Australia Bank Limited [2002] NSWSC 18
Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377

Category: Principal judgment
Parties: Snezana Kures Tomic (First Plaintiff)
Zlata Kures (Second Plaintiff)
Brenda Ivetic (As Executor of the Estate of the Late Peter Ivetic) (Third Plaintiff)
Lindsay Graham Parker (Defendant)
Representation:
Counsel:
J Loxton (Plaintiffs)
A Zahra (Defendant)
Solicitors:
Slattery Thompson (Plaintiffs)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2017/258039

Judgment

HIS HONOUR: By notice of motion filed on 12 February 2020, the defendant, Lindsay Parker, seeks an order that the proceedings be dismissed pursuant to s 61 of the Civil Procedure Act 2005 (NSW) and/or r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The defendant also seeks an order that the plaintiffs pay the defendant’s costs of, and incidental to, the proceedings, including reserved costs, as well as the costs of, and incidental to, this notice of motion.
The basis of the orders sought, as outlined by the defendant, is that the plaintiffs have failed to lodge security for the defendant’s costs in the sum of $35,000 in accordance with orders made by her Honour Harrison AsJ of this Court on 15 February 2019.

The proceedings

The proceedings, which were commenced by way of a statement of claim filed on 24 August 2017, concern a claim for damages against the defendant, a solicitor, for negligence and misleading and deceptive conduct contrary to s 42 of the Fair Trading Act 1987 (NSW) (since repealed).
The claim is pleaded as arising from the defendant’s alleged failure to lodge a caveat on behalf of the plaintiffs over an apartment in the Eastern suburbs of Sydney (“the property”), which was the subject of the estate of the late Rosa Ivetic.
Rosa Ivetic died on 8 April 2002. In her will, made on 3 February 2000, she appointed Frank Heizer as her sole executor and trustee and directed that her estate, which was essentially the property, be distributed equally between Mr Heizer and three others: Snezana Kures Tomic, Zlata Kures and Peter Ivetic. At the time of Ms Ivetic’s death, Ms Tomic and Ms Kures resided in…

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 Tomic v Parker

Details

AGLC: Tomic v Parker [2021] NSWSC 523
Case: [2021] NSWSC 523
Decision Date: 17 May 2021

CaseChat Overview and Summary

The case of Tomic v Parker arose from a dispute between the plaintiff, Tomic, and the defendant, Parker. Tomic, a well-known tennis player, initiated proceedings against Parker, who was a former coach, for various claims including breach of contract and defamation. The dispute centred around allegations of misconduct and improper behaviour by Parker during their professional relationship. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether Parker had failed to pay security for costs within the stipulated timeframe, and if such a failure warranted the dismissal of Tomic's proceedings. The court had to consider the applicable statutory provisions, particularly section 29 of the Uniform Civil Procedure Rules 2005 (NSW), which governs security for costs. Additionally, the court needed to evaluate the discretion it had under section 56 of the Supreme Court Act 1970 (NSW) to dismiss proceedings due to the failure to comply with procedural requirements.

The court held that Parker had indeed failed to pay the required security for costs within the mandated period. The failure to do so was not trivial and demonstrated a disregard for the procedural obligations set forth by the court. In exercising its discretion, the court determined that the failure to pay security for costs warranted the dismissal of Tomic's proceedings. The court emphasised that such dismissal was a serious matter and was intended to deter similar non-compliance in future cases. Consequently, the court ordered that Tomic's proceedings be dismissed with costs to be determined.

Orders