DALY v. COFFS HARBOUR SHIRE COUNCIL [2004] NSWSC 215

DALY v. COFFS HARBOUR SHIRE COUNCIL [2004] NSWSC 215

The motion was dismissed because the case did not fall within Part 53 Rule 2, security was not necessary to ensure the proper and effective administration of justice, and the likely effect of an order would be to stultify the litigation. Although the plaintiff was impecunious and the action was substantially for the benefit of the liquidator as well as the plaintiff, she had a genuine concern with the subject matter and a significant interest in any recovery. The assignment was not found to be a mere device to avoid liability for costs, and the action was not so fragile that it should be prevented from proceeding under the usual rules and processes.

Jurisdiction
Australia
Judgment Date
26 March 2004
Procedural Posture
Civil Proceedings for Damages; Notice of Motion for Security for Costs / Defendant's Motion for Security for Costs
Outcome
Motion dismissed
Legal Topics
['security for Costs' 'inherent Jurisdiction' 'assignment of Chose in Action by Liquidator' 'impecunious Plaintiff' 'discretionary Considerations']
['civil Procedure' 'costs' 'corporations and Insolvency'] ['security for Costs' 'inherent Jurisdiction' 'assignment of Chose in Action by Liquidator' 'impecunious Plaintiff' 'discretionary Considerations']

Case Brief

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Procedural Posture

Civil Proceedings for Damages; Notice of Motion for Security for Costs / Defendant's Motion for Security for Costs

Legal Issues

  1. 1 ['Whether the defendant should obtain security for costs against an impecunious plaintiff who sued as assignee of a cause of action assigned by a liquidator.' "Whether Part 53 Rule 2 of the Supreme Court Rules applied to the plaintiff's circumstances." "Whether the Court's inherent jurisdiction should be exercised to order security for costs because the assignment was said to avoid the operation of rules applying to an impecunious corporation." "Whether the plaintiff's claim was so fragile, or the assignment so abusive, that security was necessary for the proper and effective administration of justice."]

Ratio Decidendi

The motion was dismissed because the case did not fall within Part 53 Rule 2, security was not necessary to ensure the proper and effective administration of justice, and the likely effect of an order would be to stultify the litigation. Although the plaintiff was impecunious and the action was substantially for the benefit of the liquidator as well as the plaintiff, she had a genuine concern with the subject matter and a significant interest in any recovery. The assignment was not found to be a mere device to avoid liability for costs, and the action was not so fragile that it should be prevented from proceeding under the usual rules and processes.

Court Disposition

Motion dismissed

Orders

  • ["The defendant's motion for security for costs is dismissed." 'The parties are to be heard on the issue of costs on a date to be fixed.']