Hoffmann v Challis (No 2) [2016] NSWSC 269

Hoffmann v Challis (No 2) [2016] NSWSC 269

Security for costs was appropriate because the plaintiff was resident outside Australia and had no assets in New South Wales, and although enforcement of a New South Wales costs judgment in Illinois appeared legally available, the evidence did not sufficiently address the practical difficulty of obtaining actual satisfaction overseas. The defendant's proposed $100,000 was too pessimistic and the plaintiff's $22,000 position too optimistic, so $75,000 was the appropriate security. The plaintiff's refusal of the Calderbank offer was not shown to be unreasonable, but the defendant succeeded on a discrete issue and was entitled to the costs of the motion.

Jurisdiction
Australia
Judgment Date
26 February 2016
Procedural Posture
Defamation Proceeding; Application for Security for Costs / Interlocutory Motion
Outcome
Security for costs ordered in the sum of $75,000; proceedings stayed until compliance; liberty to apply granted; plaintiff ordered to pay defendant's costs of and incidental to the motion; special order for costs payable forthwith declined.
Legal Topics
['security for Costs' 'plaintiff Ordinarily Resident Outside Australia' 'enforcement of New South Wales Judgment Overseas' 'calderbank Offer' 'costs of Interlocutory Application']
['civil Procedure' 'costs' 'defamation'] ['security for Costs' 'plaintiff Ordinarily Resident Outside Australia' 'enforcement of New South Wales Judgment Overseas' 'calderbank Offer' 'costs of Interlocutory Application']

Case Brief

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Procedural Posture

Defamation Proceeding; Application for Security for Costs / Interlocutory Motion

Legal Issues

  1. 1 ["Whether the plaintiff/respondent, who resided in Illinois and had no assets in the jurisdiction, should provide security for the defendant's costs under r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW)." 'What amount and conditions of security should be ordered, having regard to the ease and convenience of enforcing a New South Wales costs judgment in Illinois.' 'Whether costs of the security for costs application should be payable forthwith by reason of a purported Calderbank offer.' 'Whether the defendant should have the costs of the security for costs application.']

Ratio Decidendi

Security for costs was appropriate because the plaintiff was resident outside Australia and had no assets in New South Wales, and although enforcement of a New South Wales costs judgment in Illinois appeared legally available, the evidence did not sufficiently address the practical difficulty of obtaining actual satisfaction overseas. The defendant's proposed $100,000 was too pessimistic and the plaintiff's $22,000 position too optimistic, so $75,000 was the appropriate security. The plaintiff's refusal of the Calderbank offer was not shown to be unreasonable, but the defendant succeeded on a discrete issue and was entitled to the costs of the motion.

Court Disposition

Security for costs ordered in the sum of $75,000; proceedings stayed until compliance; liberty to apply granted; plaintiff ordered to pay defendant's costs of and incidental to the motion; special order for costs payable forthwith declined.

Orders

  • ["The plaintiff is to provide initial security for the costs of the defendant in the sum of $75,000 by way of payment of that amount into a controlled money account operated by the plaintiff's solicitors K & L Gates within seven days." 'The proceedings are stayed until Messrs K & L Gates inform Messrs Atanaskovic &...