Young v Cooke

Case [2018] NSWSC 588


Supreme Court


New South Wales

Medium Neutral Citation: Young v Cooke [2018] NSWSC 588
Hearing dates: 3 October 2017
Date of orders: 03 May 2018
Decision date: 03 May 2018
Jurisdiction:Common Law
Before: Walton J
Decision:

The legal representatives for the Cookes shall bring in short minutes of order reflecting this judgment within 7 days of its publication.

Catchwords: COSTS – application for security for costs – principles – r 50.8 of the Uniform Civil Procedure Rules 2005 – whether or not special circumstances demonstrated – discretionary factors – prospects of success – impecuniosity – question of bona fides – conduct in litigation – risk of stultification – special circumstances established – exercise of discretion – quantum of security – directions
Legislation Cited: Companion Animals Act 1998 (NSW)
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules (NSW)
Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Gurnett v The Macquarie Stevedoring Company Pty Ltd (1956) 95 CLR 106; [1956] ALR 691
Hastings v Hastings [2009] NSWCA 294
Knight v Beyond Properties Pty Ltd [2005] FCA 764
Kostas v HIA Insurance Securities Services Pty Ltd (2010) 241 CLR 390; (2010) 270 ALR 228; [2010] HCA 32
Lall v 53–55 Hall Street Pty Ltd [1978] 1 NSWLR 310
Little v The Commonwealth (1947) 75 CLR 94; [1947] HCA 24
Pi v Zhou [2017] NSWCA 16
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
RL & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082
The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136
US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Young v Cooke [2016] FCA 1215
Young v Cooke [2016] NSWSC 1386
Young v Cooke [2016] NSWSC 408
Young v Cooke [2017] FCA 26
Young v Cooke [2017] NSWCA 33
Category:Costs
Parties: Gary Young (Plaintiff / Respondent)
Bill Cooke (First Defendant / Applicant on Motion)
Helena Cooke (Second Defendant / Applicant on Motion)
Representation:

Counsel:
A Coombes (Plaintiff / Respondent)
D Stewart with A Hopkins (First and Second Defendants / Applicants on Motion)

  Solicitors:
Chapman Thackeray (First and Second Defendants / Applicants on Motion)
File Number(s): 2015/00208296

Judgment

  1. HIS HONOUR: This judgment concerns an application for security for costs brought by Mr Bill Cooke and Mrs Helena Cooke (“the Cookes”) pursuant to r 50.8 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (“the application”). The application was sought with respect to an appeal brought by Mr Gary Young, pursuant to s 39(1) of the Local Court Act 2007 (NSW), from a decision of Bradd LCM in the Local Court of New South Wales on 18 June 2015 (“the decision”).

  2. The…

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AGLC
Young v Cooke [2018] NSWSC 588
Case
[2018] NSWSC 588
Decision Date

CaseChat Overview and Summary

The applicant, Cooke, sought security for costs from the respondent, Young, under rule 50.8 of the Uniform Civil Procedure Rules 2005. The application arose from a dispute involving a business partnership, with Cooke claiming that Young had breached the partnership agreement. The application was heard in the Supreme Court of New South Wales. The central legal issues revolved around whether special circumstances had been demonstrated to justify the imposition of security for costs, and if so, the appropriate quantum of security to be ordered.

The court considered several discretionary factors, including the prospects of success, impecuniosity, the question of bona fides, and the conduct in litigation. Cooke argued that special circumstances were present due to Young's financial position and conduct in the litigation. The court noted that Young's conduct, including delaying tactics and inconsistent statements, raised concerns about the bona fides of the respondent's claim. Additionally, the court found that Young's financial status, while not necessarily indicating impecuniosity, did not provide a strong counter-argument to the risk of stultification if security was not granted.

After weighing these factors, the court determined that special circumstances were indeed established. The court exercised its discretion to order security for costs, setting the quantum at $10,000. The court provided directions for the management of costs, emphasizing the importance of avoiding unnecessary expense and ensuring that the litigation proceeded efficiently. The final orders reflected the court's determination, with Cooke being granted security for costs in the specified amount, subject to the provided directions.

Orders

Orders of the court

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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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