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
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
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”).
The…
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.
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Details
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.