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