Azmin Firoz Daya v CX Reinsurance Company Limited [2012] NSWSC 1213

Azmin Firoz Daya v CX Reinsurance Company Limited [2012] NSWSC 1213

The plaintiff was resident in Ontario, Canada, so the ground in r 42.21(1)(a) was established, but r 42.21(1)(e) was not established because he was suing for his own benefit even though the Ingot parties, as judgment creditors and funders, would also benefit. The discretionary factors did not justify the $420,000 sought; because a Canadian court would recognise and enforce an Australian costs judgment and the additional enforcement cost was about AUD $7,500, security was ordered in that amount. The defendants' late need for evidence from non-compellable overseas witnesses did not justify forcing the Sydney trial to proceed without those witnesses, and the matter was adjourned for...

Jurisdiction
Australia
Judgment Date
30 August 2012
Procedural Posture
Interlocutory Applications / Amended Interlocutory Process Seeking Security for Costs and Directions Concerning Evidence of Overseas Witnesses
Outcome
The plaintiff was ordered to give security for the defendants' costs in the sum of $7,500; unless security was given by 13 September 2012 the proceedings were to be stayed; the defendants were ordered to pay 90 per cent of the plaintiff's costs of the motion; the matter was adjourned for directions concerning...
Legal Topics
['security for Costs' 'plaintiff Resident Outside New South Wales' 'plaintiff Suing for Own Benefit' 'litigation Funding by Creditors' 'evidence on Commission' 'video Link Evidence' 'non Compellable Overseas Witnesses']
['civil Procedure' 'costs' 'evidence' 'insurance'] ['security for Costs' 'plaintiff Resident Outside New South Wales' 'plaintiff Suing for Own Benefit' 'litigation Funding by Creditors' 'evidence on Commission' 'video Link Evidence' 'non Compellable Overseas Witnesses']

Case Brief

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Procedural Posture

Interlocutory Applications / Amended Interlocutory Process Seeking Security for Costs and Directions Concerning Evidence of Overseas Witnesses

Legal Issues

  1. 1 ["Whether the plaintiff should give security for the defendants' costs under (NSW) Uniform Civil Procedure Rules, r 42.21." 'Whether the plaintiff was suing not for his own benefit but for the benefit of another person.' 'How the ease and cost of enforcing an Australian costs judgment in Ontario should affect security for costs.' 'Whether evidence of non-compellable overseas witnesses should be taken by video link, on commission in London, or by adjourning the hearing.']

Ratio Decidendi

The plaintiff was resident in Ontario, Canada, so the ground in r 42.21(1)(a) was established, but r 42.21(1)(e) was not established because he was suing for his own benefit even though the Ingot parties, as judgment creditors and funders, would also benefit. The discretionary factors did not justify the $420,000 sought; because a Canadian court would recognise and enforce an Australian costs judgment and the additional enforcement cost was about AUD $7,500, security was ordered in that amount. The defendants' late need for evidence from non-compellable overseas witnesses did not justify forcing the Sydney trial to proceed without those witnesses, and the matter was adjourned for...

Court Disposition

The plaintiff was ordered to give security for the defendants' costs in the sum of $7,500; unless security was given by 13 September 2012 the proceedings were to be stayed; the defendants were ordered to pay 90 per cent of the plaintiff's costs of the motion; the matter was adjourned for directions concerning...

Orders

  • ["Order that the plaintiff give security for the defendants' costs in the sum of $7,500 by cash paid to the credit of these proceedings in the Registry or such other form as may be acceptable to the defendant;" 'Order that unless the security is given by 13 September 2012 the proceedings be stayed;' "Order that the...