Young v Cooke
[2016] NSWSC 1388
•20 July 2016
Supreme Court
New South Wales
Medium Neutral Citation: Young v Cooke [2016] NSWSC 1388 Hearing dates: 20 July 2016 Date of orders: 20 July 2016 Decision date: 20 July 2016 Jurisdiction: Common Law Before: Harrison J Decision: 1. Adjourn the proceedings on the plaintiff’s application subject to payment by the plaintiff of the defendants’ costs of the adjournment being the sum of $3,500.
2. Order that the costs be payable forthwith and the proceedings be stayed pending payment of those costs by the plaintiff to the defendants.
3. Direct that the proceedings can be restored to the list on the application of either party on 7 days’ notice to the other side.Catchwords: PRACTICE AND PROCEDURE – application for security for costs on behalf of defendants – plaintiff unable to obtain legal representation – concession plaintiff may have arguable case – risk of prejudice to defendants if security for costs not provided – gross costs order appropriate – adjournment granted – stay of proceedings pending payment of costs by plaintiff of defendants’ application Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Gary Young (Plaintiff)
Bill Cooke (First Defendant)
Helena Cooke (Second Defendant)Representation: Counsel:
Solicitors:
A Coombes (Plaintiff)
D Stewart and N Apkarian (Defendants)
Chapman Thackeray Law (Defendants)
File Number(s): 2015/208296 Publication restriction: Nil
ex tempore judgment
-
HIS HONOUR: These proceedings come before me today on the defendants’ notice of motion, seeking an order for security for costs. An amended notice of motion was filed by the defendants on 23 June 2016 and, in terms, seeks, relevantly, an order as follows:
“Pursuant to UCPR 42.21, 50.8, 59.11 and s 23 of the Supreme Court Act 1970, and/or the inherent power of the court, the plaintiff to provide security for costs as the court thinks fit.”
-
That amended notice of motion also seeks an order for costs.
-
When the matter was called this morning, Mr Coombes of counsel announced his appearance on behalf of the plaintiff. He indicated he had limited instructions to apply for an adjournment of today’s application. That adjournment application was based upon the fact that Mr Young, who had previously been referred by Garling J to the Bar Association for pro bono legal assistance, had, despite his best endeavours and apparently as the result of some difficulties with the Bar Association, been unable to secure a grant of assistance as anticipated.
-
Mr Coombes appears as the result of the limited success Mr Young has so far managed to achieve by taking up the referral in question.
-
The application for adjournment is opposed. In taking that position, however, Mr Stewart of counsel, who with Ms Apkarian of counsel appears for the defendants, indicates that in the circumstances the position facing Mr Young, effectively without legal assistance on the substantive matters raised by the motion, is difficult and that he is entitled at least to some favourable consideration on the present application. Mr Stewart’s concession – quite reasonably, in my opinion – does not, however, extend to the point where he would not require, as a condition of agreeing to the adjournment, that the costs of the defendants be paid by the plaintiff.
-
These proceedings have a long and somewhat unfortunate history. They relate to the identity and ownership of a dog or, depending upon one’s view of the matter, of two dogs. The present application is supported by evidence setting out the anticipated costs of the proceedings. The plaintiff has filed no evidence in response from which he has either established, or from which some indication could be inferred, that he has sufficient funds to meet any adverse costs order against him in the event such an order were made.
-
The current process under the terms of which the issues in these proceedings are to be determined is an amended summons. I am not presently aware of whether or not that document has in fact been filed, but it has found its way into a joint court book filed on 16 March 2016. Whatever difficulties may confront the plaintiff in his appeal to this Court from the Local Court, the defendants concede – for present purposes, without admission – that the plaintiff may have an arguable case founding jurisdiction. I hasten to add that that concession is limited to the context of the present application for security for costs.
-
Mr Coombes’s application for an adjournment is, quite understandably, based upon the proposition that he has been unable to obtain sufficient instructions or, in turn, to give appropriate advice about the substantive legal issues in the case. Through no fault of his own, however, that circumstance does not meet the present application upon which the defendants wish to proceed, suggesting they are and will remain at risk of prejudice if some security for the costs of the proceedings is not provided.
-
It seems to me, in the circumstances, that a mid course may well be available. Mr Young’s difficulties would appear to have arisen notwithstanding his timely attempts to obtain assistance from the Bar Association. By the same token, the defendants appear today ready to prosecute this application. Costs will have necessarily been incurred, and will potentially be lost if the application for adjournment succeeds and no accommodation for costs is made.
-
At my request, Mr Stewart has informed me that the costs of and incidental to today’s application, which would be thrown away or wasted if the adjournment application succeeded, amount to $3,500 including GST. There is material filed in support of the principal motion which gives some additional credence to the calculation of that sum. In any event, Mr Coombes does not suggest it is unreasonable and, for better or worse, the sum appears to me to be eminently reasonable upon the basis of my own experience.
-
I note as well that I have, pursuant to s 98(4)(c) of the Civil Procedure Act 2005, power to make a specified gross sum costs order instead of assessed costs if the evidence satisfies me such an order is appropriate. I propose to take that course.
-
In summary, it seems to me the plaintiff should be entitled to his adjournment in anticipation of obtaining appropriate legal assistance but should be ordered to pay the costs occasioned by the adjournment which, for present purposes, are assessed in the sum of $3,500. I consider, in addition, those costs should be payable forthwith and that the proceedings should be stayed, pending payment by the plaintiff of that sum to the defendants.
-
The present application will be adjourned. Having regard to the stay I have ordered, the proceedings can be restored to the list, on the application of either party, on seven days’ notice to the other side.
**********
Decision last updated: 29 September 2016
0
1