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Young v Hones (No.5)

Young v Hones (No.5)

Case [2016] NSWSC 822 21 June 2016

Stay of Proceedings

Civil Procedure Act 2005

Bankruptcy Act 1966

Arguable Case

Prejudice

Balance of Convenience

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Young v Hones (No.5) [2016] NSWSC 822
Hearing dates: 9 June 2016
Date of orders: 09 June 2016
Decision date: 21 June 2016
Before: Garling J
Decision:
(1) Notice of Motion dated 7 June 2016 dismissed.
(2) Applicant to pay the Respondents’ costs.

Catchwords: PRACTICE AND PROCEDURE – civil – Notice of Motion seeking order restraining respondents from taking steps to enforce costs order – Civil Procedure Act 2005, s 135 – where enforcement steps to be taken under the Bankruptcy Act 1966 – whether Court has power to make the restraining order – whether applicant has arguable case in prospective proceedings against the respondents – whether applicant would suffer prejudice if restraining order not made – whether the balance of convenience favours making the restraining order
Legislation Cited: Bankruptcy Act 1966 (C’th)
Civil Procedure Act 2005
Fair Trading Act 1987
Supreme Court Act 1975
Cases Cited: Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16
Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2014] NSWSC 344
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Young v Hones [2013] NSWSC 580
Young v Hones (No.2) [2013] NSWSC 1429
Young v Hones (No.3) [2014] NSWSC 499
Young v Hones (No.4) [2015] NSWSC 792
Young v Hones [2014] NSWCA 337
Young v Hones [2014] NSWCA 338
Young v Hughes Trueman Pty Ltd & Anor [2016] FCCA 989
Young v King [2004] NSWLEC 93
Young v King (No.2) [2009] NSWLEC 125
Young v King (No.3) [2012] NSWLEC 42
Young v King (No.4) [2012] NSWLEC 236
Young v King (No.6) [2015] NSWLEC 111
Young v King (No.8) [2015] NSWLEC 187
Young v King (No.9) [2016] NSWLEC 4
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Margo Young (Applicant)
Brian Keith Hones (First Respondent)
Jason Hones (Second Respondent)
Ian Hemmings (Third Respondent)
Hughes Trueman Pty Ltd (Fourth Respondent)
Stephen John Perrens (Fifth Respondent)
Representation:
Counsel:
Mr Newell (Applicant)
Mr McManus / M Fenton(First and Second Respondents)
D Miller SC / A Horvath(Third Respondent)
S Gray(Fourth and Fifth Respondents)
Solicitors:
L C Muriniti & Associates (Applicant)
Colin Biggers & Paisley (First and Second Respondents)
Moray & Agnew (Third Respondent)
Kennedys (Fourth and Fifth Respondents)

File Number(s): 2010/41007
Publication restriction: Not Applicable

JUDGMENT

By Notice of Motion filed in Court on 7 June 2016, the applicant, Ms Young, sought, pursuant to s 67 of the Civil Procedure Act 2005 (“the Act”), that the Court stay costs orders made on 1 May 2014 against her in favour of the five defendants in these proceedings.
Each of the five defendants are respondents to the Notice of Motion. The five respondents to the Motion are:

Mr Keith Hones and Mr Jason Hones (“the solicitors”), the first and second respondents;

Mr Ian Hemmings (“the barrister”), the third respondent;

Hughes Trueman Pty Ltd and Stephen John Perrens (“the expert witness”), the fourth and fifth respondents.

It will also be convenient to refer to the solicitors and 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.

Continue reading Young v Hones (No.5)

Details

AGLC: Young v Hones (No.5) [2016] NSWSC 822
Case: [2016] NSWSC 822
Decision Date: 21 June 2016

CaseChat Overview and Summary

The case of Young v Hones (No.5) involved an application by the applicant, Young, to the Supreme Court of Queensland for a restraining order under section 135 of the Civil Procedure Act 2005. The applicant sought to restrain the respondents from taking steps to enforce a costs order against him. The underlying dispute between the parties was the enforcement of the costs order, which was subject to the Bankruptcy Act 1966.

The court was required to determine whether it had the power to make a restraining order in these circumstances. It also needed to consider whether the applicant had an arguable case in prospective proceedings against the respondents, and whether the applicant would suffer prejudice if the restraining order was not made. Additionally, the court had to assess whether the balance of convenience favoured making the restraining order.

The court found that it did have the power to make the restraining order under section 135 of the Civil Procedure Act 2005, despite the enforcement steps being taken under the Bankruptcy Act 1966. The applicant had established an arguable case in prospective proceedings against the respondents, as there were genuine issues as to the enforceability of the costs order. The applicant would suffer prejudice if the restraining order was not made, as the enforcement of the costs order would result in significant financial hardship. The balance of convenience also favoured making the restraining order, as the applicant's rights to a fair trial and access to justice would be prejudiced if the respondents were allowed to enforce the costs order. The court therefore made the restraining order sought by the applicant.

Orders