SHAKE VOSKIAN & ORS v ZAREH JAMGOTCHIAN [2010] NSWSC 610

SHAKE VOSKIAN & ORS v ZAREH JAMGOTCHIAN [2010] NSWSC 610

Security for costs was ordered because, although the plaintiffs' claim was serious and not misconceived or frivolous, its factual foundation was fragile: the original Acknowledgment had not been produced for forensic examination, the explanation for non-production was unpersuasive, expert evidence suggested related supporting documents may have been fraudulently altered, and those matters raised serious concerns about the merits and bona fides of the plaintiffs' claim. The plaintiffs' impecuniosity did not outweigh those matters because their solicitor said real estate was available for security, and any delay by the defendant was adequately explained and accommodated by reducing the...

Jurisdiction
Australia
Judgment Date
04 June 2010
Procedural Posture
Equity Proceedings Concerning an Alleged Resulting Trust and Related Estate Property Claim / Interlocutory Notice of Motion by the Defendant for Security for Costs and Production of an Original Document for Forensic Examination
Outcome
The defendant's motion was granted in part. The plaintiffs were ordered to provide security for costs of $60,000, the proceedings were stayed unless and until security was provided, dismissal was ordered if security was not provided within two months, production of the original Acknowledgment was ordered if security...
Legal Topics
['security for Costs' 'resulting Trust' 'production of Original Documents' 'forensic Examination of Documents' 'impecuniosity' 'merits and Good Faith of Claim' 'costs Out of Estate' 'delay']
['equity' 'civil Procedure' 'trusts and Estates'] ['security for Costs' 'resulting Trust' 'production of Original Documents' 'forensic Examination of Documents' 'impecuniosity' 'merits and Good Faith of Claim' 'costs Out of Estate' 'delay']

Case Brief

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Procedural Posture

Equity Proceedings Concerning an Alleged Resulting Trust and Related Estate Property Claim / Interlocutory Notice of Motion by the Defendant for Security for Costs and Production of an Original Document for Forensic Examination

Legal Issues

  1. 1 ["Whether the plaintiffs should provide security for the defendant's costs." "Whether the strength and good faith of the plaintiffs' case weighed in favour of security for costs." "Whether the plaintiffs' impecuniosity should prevent an order for security for costs where real estate security was said to be available." 'Whether delay by the defendant should affect the security for costs application.' 'Whether the plaintiffs should produce the original Acknowledgment and Irrevocable Engagement for forensic examination if security is provided.']

Ratio Decidendi

Security for costs was ordered because, although the plaintiffs' claim was serious and not misconceived or frivolous, its factual foundation was fragile: the original Acknowledgment had not been produced for forensic examination, the explanation for non-production was unpersuasive, expert evidence suggested related supporting documents may have been fraudulently altered, and those matters raised serious concerns about the merits and bona fides of the plaintiffs' claim. The plaintiffs' impecuniosity did not outweigh those matters because their solicitor said real estate was available for security, and any delay by the defendant was adequately explained and accommodated by reducing the...

Court Disposition

The defendant's motion was granted in part. The plaintiffs were ordered to provide security for costs of $60,000, the proceedings were stayed unless and until security was provided, dismissal was ordered if security was not provided within two months, production of the original Acknowledgment was ordered if security...

Orders

  • ["The plaintiffs provide security for the defendant's costs in the sum of $60,000 by way of payment into court within two months of the date of the order." 'The proceedings be stayed unless and until that security is provided.' 'If the security is not provided within two months of the date of the order, the...