Young v Cooke - [2016] NSWSC 1388

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:
A Coombes (Plaintiff)
D Stewart and N Apkarian (Defendants)
Solicitors:
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,…

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.

Continue reading Young v Cooke

Details

AGLC: Young v Cooke [2016] NSWSC 1388
Case: [2016] NSWSC 1388
Decision Date: 20 July 2016

CaseChat Overview and Summary

The case of Young v Cooke was heard in the Federal Circuit Court. The plaintiff, Mr. Young, sought damages from the defendants, Cooke and others, for various causes of action including breach of fiduciary duty, negligence, and breach of contract. The defendants applied for security for costs on behalf of themselves and their legal representatives, asserting that the plaintiff was unable to obtain legal representation and might have an arguable case, but the risk of prejudice to the defendants if security for costs was not provided outweighed any potential prejudice to the plaintiff.

The court was tasked with determining whether the plaintiff's inability to obtain legal representation and the risk of prejudice to the defendants justified the granting of a gross costs order. The court also had to consider the appropriate amount of security and whether any adjournment or stay of proceedings was warranted. The defendants argued that the plaintiff's lack of legal representation and potential for an arguable case made it reasonable to require security for costs, while the plaintiff did not oppose the application outright but sought a lower amount than that requested by the defendants.

The court found that the plaintiff's inability to obtain legal representation and the potential for an arguable case was a significant factor in favour of the defendants' application. The court also noted the risk of prejudice to the defendants if security for costs was not provided, as they would be left to defend the action without any financial protection. After considering the submissions from both parties, the court granted a gross costs order in favour of the defendants, requiring the plaintiff to pay the defendants' costs of the application. The court further granted an adjournment and a stay of proceedings pending payment of the costs by the plaintiff.

Orders