Young v Cooke

Case [2017] NSWCA 33

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Young v Cooke [2017] NSWCA 33
Hearing dates: 24 February 2017
Decision date: 06 March 2017
Before: Macfarlan JA at [1]
Gleeson JA at [2]
Decision:

(1)   Grant leave to appeal limited to the following ground:

 

•   the primary judge’s discretionary decision that costs (assessed in a gross sum of $3,500) should be payable forthwith and the proceedings stayed pending payment of that sum to the defendants miscarried because: (a) his Honour failed to take into account as a relevant factor that Mr Young was not at fault in having to seek an adjournment of the hearing on 20 July 2016 and such orders would likely stifle the proceedings, it being common ground that Mr Young was impecunious; or (b) the decision was plainly unreasonable in all the circumstances.

 

(2)   Direct that Mr Young file and serve a notice of appeal limited to the ground referred to in order (1) above within 14 days.

 (3)   Costs of the summons seeking leave to appeal are costs in the appeal.
Catchwords: APPEAL – application for leave to appeal – circumstances where grant of leave appropriate – challenge to discretionary costs order made payable forthwith and stay order following successful adjournment application – where party seeking adjournment not at fault and is impecunious – where effect of orders likely to stultify the proceedings - whether substantial injustice if leave to appeal not granted
Legislation Cited: Civil Liability Act 2002 (NSW)
Companion Animals Act 1998 (NSW), ss 69(2), (3)
Local Court Act 2007 (NSW), ss 39(1), 40(1)
Supreme Court Act 1970 (NSW), ss 69, 101(2)(c), 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), rr 50.8, 51.12(2)(d), 51.50, 59.11
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Dillon v Gosford City Council [2011] NSWCA 328
House v R (1936) 55 CLR 499
ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307
J Aron Corporation and Another v Newmont Yandal Operations Pty Ltd and Others (2004) 183 FLR 90; [2004] NSWSC 533
Lamb (Trustee) in the matter of Ariss (Bankrupt) v Ariss [2006] FAC 582
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Milcap Publishing Group AB v Coranto Corporation Pty Ltd (1995) 32 IPR 34
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Re South Downs Packers Pty Ltd [1984] 2 Qd R 559
Re the Will of Gilbert (1946) 46 SR (NSW) 318; [1981] HCA 39
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Toppro Pty Ltd v Yoo [2016] NSWCA 119
Trewenack v Clippers Anchorage Pty Ltd (1983) Ritchie Practice Decisions 13,030

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AGLC
Young v Cooke [2017] NSWCA 33
Case
[2017] NSWCA 33
Decision Date

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal against discretionary orders made by a primary judge in the Supreme Court of New South Wales. The applicant, Mr Young, sought leave to appeal against orders for costs payable forthwith and a stay of proceedings, which were made following his successful application for an adjournment of a hearing. The respondents were the defendants in the proceedings.

The central legal issue before the Court of Appeal was whether leave to appeal should be granted. Specifically, the court had to determine if the primary judge's discretionary decision to order costs payable forthwith and to stay proceedings pending payment was affected by error. This involved considering whether the primary judge failed to take into account relevant factors, such as Mr Young's lack of fault in seeking the adjournment and his impecuniosity, and whether these factors, combined with the likelihood of the orders stifling the proceedings, rendered the decision plainly unreasonable.

The Court of Appeal granted leave to appeal, but limited to the specific ground concerning the discretionary costs and stay orders. The court found that there was a sufficient basis to consider whether the primary judge had erred by failing to account for Mr Young's lack of fault and impecuniosity, and the potential for the orders to stifle the proceedings. The court also considered whether the decision was plainly unreasonable in the circumstances. The court ordered that Mr Young file and serve a notice of appeal limited to this ground within 14 days, and that the costs of the summons seeking leave to appeal be costs in the appeal.

Orders

Orders of the court

(1) Grant leave to appeal limited to the following ground:

• the primary judge’s discretionary decision that costs (assessed in a gross sum of $3,500) should be payable forthwith and the proceedings stayed pending payment of that sum to the defendants miscarried because: (a) his Honour failed to take into account as a relevant factor that Mr Young was not at fault in having to seek an adjournment of the hearing on 20 July 2016 and such orders would likely stifle the proceedings, it being common ground that Mr Young was impecunious; or (b) the decision was plainly unreasonable in all the circumstances.

(2) Direct that Mr Young file and serve a notice of appeal limited to the ground referred to in order (1) above within 14 days.

(3) Costs of the summons seeking leave to appeal are costs in the appeal.

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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