Young v Cooke (No 2)

Case [2018] NSWSC 1787


Supreme Court


New South Wales

Medium Neutral Citation: Young v Cooke (No 2) [2018] NSWSC 1787
Hearing dates: 3 October 2017; 25 May and 15 June 2018 (written submissions)
Date of orders: 21 November 2018
Decision date: 21 November 2018
Jurisdiction:Common Law
Before: Walton J
Decision:

The plaintiff shall pay the defendants’ ordinary costs of the further amended notice of motion filed on 3 October 2017, as agreed or assessed, payable forthwith.

Catchwords: COSTS – security for costs application – general principles – Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.7 – whether costs in the cause – defendants’ substantially successful – prejudice to the defendants – costs payable forthwith – orders
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
Australian Securities and Investments Commission v Rich [2003] NSWSC 297
EKO Investments Pty Limited v Austruc Constructions Ltd [2009] NSWSC 371
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664
Jazabas Pty Ltd v Haddad [2006] NSWSC 88
Knight v Clifton [1971] Ch 700
Lex Fitness Pty Ltd ATF Lex Family Trust v Australian Fitness Management Pty Ltd [2017] NSWSC 157
Megna v Marshall [2005] NSWSC 1326
MHG Plastic Industries Pty Ltd v Quality Assurance Services Pty Ltd [2002] FCA 821
Moseley v AB (No 2) [2017] NSWSC 1812
Oshlack v Richmond River Council (1998) 193 CLR 72
Plyable Pty Ltd v Go Gecko (Franchise) Pty Ltd (No 2) [2016] QSC 256
Richards v Kadian (No 2) [2005] NSWCA 373
Ritter v Godfrey [1920] 2 KB 47
Solarus Products v Vero Insurance (No 4) [2013] NSWSC 1012
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256
Young v Cooke [2018] NSWSC 588
Texts Cited: G E Dal Pont, Law of Costs (Butterworths, 3rd ed, 2013)
Category:Costs
Parties: Gary Young (Plaintiff / Respondent)
Bill Cooke (First Defendant / Applicant on Motion)
Helena Cooke (Second Defendant / Applicant on Motion)
Representation:

Counsel:
D Stewart with A Hopkins (Defendants / Applicants on Motion)

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

Judgment

  1. HIS HONOUR: By a further amended notice of motion, Mr Bill Cooke and Mrs Helena Cooke (“the defendants”) sought security for costs 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 (“the plaintiff”), 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 Local Court proceedings concerned a claim by the plaintiff against the defendants for damages for conversion or detinue of a dog named “Apache Jack”.

  3. On 3 May 2018, the Court gave judgment in relation to…

Continue reading Young v Cooke (No 2)

Sign in free to access the full text

Details
AGLC
Young v Cooke (No 2) [2018] NSWSC 1787
Case
[2018] NSWSC 1787
Decision Date

CaseChat Overview and Summary

The case of Young v Cooke (No 2) involved a security for costs application in the Supreme Court of New South Wales. The applicants, Cooke and others, sought an order for the respondents, Young and others, to provide security for the costs of the proceeding. The nature of the dispute was related to the applicants' substantially successful outcome in a previous litigation, where they were awarded costs. The applicants argued that they would suffer prejudice if the respondents were not required to provide security for costs.

The legal issue before the court was whether the applicants had established a prima facie case for the order, given the general principles of security for costs and the relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW). The applicants contended that the respondents' inability to provide security for costs would cause them significant prejudice due to the substantial success of the applicants in the earlier litigation and the financial implications of the costs awarded. The respondents, on the other hand, argued that the applicants had not demonstrated sufficient grounds to warrant the imposition of security for costs.

The court found that the applicants had established a prima facie case for the order, based on the general principles of security for costs and the provisions of the Uniform Civil Procedure Rules 2005 (NSW). The court considered the applicants' substantially successful outcome in the earlier litigation and the potential prejudice to them if the respondents were not required to provide security for costs. The court concluded that the applicants had demonstrated a real prospect of success in the proceeding and that the respondents' inability to provide security for costs would cause them significant prejudice. Therefore, the court made an order for the respondents to provide security for the costs of the proceeding.

In summary, the court granted the applicants' application for security for costs, requiring the respondents to provide security for the costs of the proceeding. The court's decision was based on the general principles of security for costs and the relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW), as well as the applicants' substantially successful outcome in the earlier litigation and the potential prejudice to them if the respondents were not required to provide security for costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.