In the matter of Elsmore Resources Ltd [2014] NSWSC 1687

In the matter of Elsmore Resources Ltd [2014] NSWSC 1687

Although the plaintiff had failed to provide the first tranche of security and Mr Fung had shown real continuing prejudice, dismissal at this stage was not appropriate because only a relatively short time had elapsed since default, the plaintiff had only a few days' notice of the application, Mr Fung had not complied with the service timetable fixed by Black J, there was no evidence about the plaintiff's ability to further fund the proceedings, and the Court's position was neutral. The proper exercise of discretion required the motion to be adjourned rather than dismissed or granted immediately.

Jurisdiction
Australia
Judgment Date
28 November 2014
Procedural Posture
Interlocutory Application / Third Defendant's Notice of Motion Under UCPR R 42.21(3) for Dismissal of the Plaintiff's Claim for Failure to Provide Security for Costs
Outcome
The third defendant's dismissal application was not granted at this time and was stood over to 16 December 2014; short written submissions on outstanding costs issues were directed.
Legal Topics
['security for Costs' 'dismissal for Failure to Comply With Security for Costs Order' 'exercise of Discretion Under UCPR R 42.21(3)' 'stay of Proceedings' 'costs']
['civil Procedure' 'corporations'] ['security for Costs' 'dismissal for Failure to Comply With Security for Costs Order' 'exercise of Discretion Under UCPR R 42.21(3)' 'stay of Proceedings' 'costs']

Case Brief

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Procedural Posture

Interlocutory Application / Third Defendant's Notice of Motion Under UCPR R 42.21(3) for Dismissal of the Plaintiff's Claim for Failure to Provide Security for Costs

Legal Issues

  1. 1 ["Whether the plaintiff's claim against the third defendant should be dismissed under UCPR r 42.21(3) because the plaintiff failed to provide security for costs ordered by Black J." 'Whether, in the circumstances including short notice of the dismissal application and prejudice to the third defendant, the Court should exercise its discretion to dismiss the claim immediately or adjourn the application.']

Ratio Decidendi

Although the plaintiff had failed to provide the first tranche of security and Mr Fung had shown real continuing prejudice, dismissal at this stage was not appropriate because only a relatively short time had elapsed since default, the plaintiff had only a few days' notice of the application, Mr Fung had not complied with the service timetable fixed by Black J, there was no evidence about the plaintiff's ability to further fund the proceedings, and the Court's position was neutral. The proper exercise of discretion required the motion to be adjourned rather than dismissed or granted immediately.

Court Disposition

The third defendant's dismissal application was not granted at this time and was stood over to 16 December 2014; short written submissions on outstanding costs issues were directed.

Orders

  • ["Stand the third defendant's notice of motion filed 13 November 2014 over to 16 December 2014 at 9:30am before Robb J." 'Direct the parties to provide short written submissions (no more than three pages) on any outstanding costs issues by 12 December 2014.']