Young v Cooke [2018] NSWSC 588

Young v Cooke [2018] NSWSC 588

Special circumstances were established under r 50.8 because Mr Young was impecunious and unlikely to meet the Cookes' costs if unsuccessful, and the proposed appeal, viewed across all three grounds which he needed to establish, was not reasonably arguable. The first ground about microchipping was weak because the statutory requirement for breeders to microchip dogs was capable of supporting the limited inference drawn by the magistrate. The second ground about photographic identification lacked reasonable prospects because it challenged a factual finding and did not show that the photographic evidence was incapable of sustaining the finding. The third ground concerning s 69(2)(a) of the...

Jurisdiction
Australia
Judgment Date
03 May 2018
Procedural Posture
Application for Security for Costs on an Appeal to the Supreme Court From the Local Court Under S 39(1) of the Local Court Act 2007 (nsw) / Further Amended Notice of Motion for Security for Costs
Outcome
Application for security for costs allowed in principle; the Court proposed security in the sum of $8,000 and directed the Cookes' legal representatives to bring in short minutes of order.
Legal Topics
['security for Costs' 'special Circumstances Under R 50.8 of the Uniform Civil Procedure Rules 2005 (nsw)' 'prospects of Success on Appeal' 'impecuniosity' 'risk of Stultification' 'appeal on a Question of Law' 'conversion or Detinue of a Dog' 'statutory Protection for Buyers Under S 69(2)(a) of the Companion Animals Act 1998 (nsw)']
['costs' 'civil Procedure' 'appeals' 'companion Animals'] ['security for Costs' 'special Circumstances Under R 50.8 of the Uniform Civil Procedure Rules 2005 (nsw)' 'prospects of Success on Appeal' 'impecuniosity' 'risk of Stultification' 'appeal on a Question of Law' 'conversion or Detinue of a Dog' 'statutory Protection for Buyers Under S 69(2)(a) of the Companion Animals Act 1998 (nsw)']

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Procedural Posture

Application for Security for Costs on an Appeal to the Supreme Court From the Local Court Under S 39(1) of the Local Court Act 2007 (nsw) / Further Amended Notice of Motion for Security for Costs

Legal Issues

  1. 1 ['Whether special circumstances were established under r 50.8 of the Uniform Civil Procedure Rules 2005 (NSW) to justify security for costs of the appeal.' "Whether Mr Young's proposed grounds of appeal were reasonably arguable questions of law under s 39(1) of the Local Court Act 2007 (NSW)." "Whether Mr Young's impecuniosity and the risk that a security order would stultify the appeal should preclude an order for security." "Whether Mr Young's conduct in the litigation and failure to pay previous costs orders were relevant to special circumstances or the exercise of discretion." 'What amount of security for costs should be ordered.']

Ratio Decidendi

Special circumstances were established under r 50.8 because Mr Young was impecunious and unlikely to meet the Cookes' costs if unsuccessful, and the proposed appeal, viewed across all three grounds which he needed to establish, was not reasonably arguable. The first ground about microchipping was weak because the statutory requirement for breeders to microchip dogs was capable of supporting the limited inference drawn by the magistrate. The second ground about photographic identification lacked reasonable prospects because it challenged a factual finding and did not show that the photographic evidence was incapable of sustaining the finding. The third ground concerning s 69(2)(a) of the...

Court Disposition

Application for security for costs allowed in principle; the Court proposed security in the sum of $8,000 and directed the Cookes' legal representatives to bring in short minutes of order.

Orders

  • ['Security for costs in the sum of $8,000.' 'The stay of the proceedings until the security is provided by Mr Young.' 'Costs of the further amended notice of motion are reserved.' 'The legal representatives for the Cookes shall bring in short minutes of order reflecting this judgment within 7 days of its publication.']