Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Wet Fix Holdings Pty Ltd v Chapman [2023] NSWCA 245 Hearing dates: 9 October 2023 Date of orders: 9 October 2023 Decision date: 13 October 2023 Before: Gleeson JA; Mitchelmore JA Decision: Summons dismissed with costs.
Catchwords: APPEALS — Leave to appeal — Proceedings dismissed for failure to comply with order to provide security for costs — Where plaintiff failed to provide security for costs after two extensions of time — Whether reasonably clear injustice — UCPR, r 42.21(3)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), r 42.21(3)
Cases Cited: Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Durham v Durham [2011] NSWCA 62
Goodman v Lorenzen [2000] QCA 11
Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356
House v The King (1936) 55 CLR 499; [1936] HCA 40
Idoport v National Australia Bank Ltd [2002] NSWSC 18
Idoport Pty Ltd v National Australia Bank Ltd & Ors; Idoport Pty Ltd v Argus [2002] NSWCA 271
McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Category: Principal judgment Parties: Wet Fix Holdings Pty Ltd (Applicant)
Christopher Chapman (Respondent)Representation: Counsel:
Solicitors:
A J Morris KC / A Elizabeth (Applicant)
M Cowden (Respondent)
Australian Law Partners (Applicant)
Brown Wright Stein Lawyers (Respondent)
File Number(s): 2023/197522 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law Division
- Date of Decision:
- 23 May 2023
- Before:
- Button J
- File Number(s):
- 2021/169213
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 11 June 2021, Wet Fix Holdings (Holdings) commenced proceedings against the first defendant, the principal of a firm of solicitors, and the second defendant, Mr Chapman, an accountant in relation to a business transaction in May 2015. On 12 September 2022, the Registrar ordered that Holdings provide security for Mr Chapman’s costs in the sum of $360,000, either by payment into court or by way of an unconditional bank guarantee, by 13 December 2022. Holdings failed to provide security for costs by that date. On 16 December 2022, Beech-Jones CJ at CL varied the orders made by the Registrar by granting a 3-month extension of time until 17 March 2023 and increased the amount of security to $390,000. The stated basis for Holdings to provide the amount of security was the proposed sale by Ms Lisa Miller of a property at Whale Beach. Holdings failed to provide security for costs by the extended date. On 21 March 2023, Holdings sought a further extension of time on the basis that the sale of the Whale Beach…
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- Case
- [2023] NSWCA 245
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether it was reasonably clear that injustice would result from the dismissal of the proceedings, as required by rule 42.21(3) of the Uniform Civil Procedure Rules (UCPR). This rule governs applications for leave to appeal against interlocutory orders, and requires the applicant to demonstrate a reasonably clear injustice.
Gleeson and Mitchelmore JJA reasoned that the plaintiff had been afforded ample opportunity to comply with the security for costs order, having received two extensions of time. Their Honours noted that the purpose of security for costs orders is to ensure that a defendant is not left without recourse for their costs if the plaintiff's claim fails. The plaintiff's continued failure to comply with the order, despite repeated opportunities, demonstrated a lack of diligence and a disregard for the court's directions. Consequently, the Court found that it was not reasonably clear that injustice would result from the dismissal of the proceedings.
The summons for leave to appeal was accordingly dismissed with costs.
Orders
Orders of the court
Summons 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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