Ward v Westpac Banking Corporation Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ward v Westpac Banking Corporation Ltd [2023] NSWCA 11

Hearing dates:

8 February 2023

Date of orders:

15 February 2023

Decision date:

15 February 2023

Before:

Ward P at [1]
Adamson JA at [2]
Griffiths AJA at [3]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed, with costs.

Catchwords:

COSTS – Security for costs – On appeal – Decision of the Supreme Court ordering the applicants to pay security for costs to first and second respondents – No House v The King error established in primary judge’s exercise of discretion – Claim that the UCPR exclusively governs the Court’s jurisdiction to order the payment of security for costs rejected

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:

Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271

Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105

House v The King (1936) 55 CLR 499; [1936] HCA 40

Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302

Mahommed v Cox as Administrator of the Deceased Estate of Dixon [2022] FCA 886

Marshall v Megna [2013] NSWCA 30

Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82; [2002] NSWCA 32

Mitchell v Transport for NSW [2022] NSWCA 141

Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231

Morris v Hanley [2001] NSWCA 374

Ninan v St George Bank Ltd [2012] FCA 905; (2012) 294 ALR 190

Townsend v O’Donnell [2016] NSWCA 288; (2016) 78 MVR 283

Category:

Principal judgment

Parties:

Roger Thomas Ward (First Applicant)
Peter Shah Mahommed (Second Applicant)
Westpac Banking Corporation Ltd (First Respondent)
Karen Ann Cox (Second Respondent)

Representation:

Counsel:
S Docker and E Keynes (First Respondent)
D Allen (Second Respondent)

Solicitors:
Leonardus Smits Lawyer (Applicants)
TG Legal + Technology (First Respondent)
Shaba & Thomas Lawyers (Second Respondent)

File Number(s):

2022/00123937

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Date of Decision:

4 April 2022

Before:

Lindsay J

File Number(s):

2020/00247595

JUDGMENT

1. WARD P: I agree with Griffiths AJA.

2. ADAMSON JA: I agree with Griffiths AJA.

3. GRIFFITHS AJA: The applicants seek leave to appeal against orders made by Lindsay J in the Supreme Court on 4 April 2022. His Honour ordered that Mr Ward and Mr Mahommed, the first and second plaintiffs below, jointly provide security for costs of Westpac Banking Corporation Ltd, the first defendant below, in the sum of $150,000 and security for costs of Ms Cox, the third defendant below, in the sum of $125,000. His Honour ordered that the security be paid on or before 4 August 2022. The proceedings were stayed pending payment of the security. The second defendant did not appear below and did not seek security for costs. Nor did it play any role in the proceedings in this Court. It should also be noted that the…