Chong Yon Han and Jung Ok Min as trustee for H M Trust trading as Eastpoint Newsagency v Tanert Pty Limited [2014] NSWDC 99

Chong Yon Han and Jung Ok Min as trustee for H M Trust trading as Eastpoint Newsagency v Tanert Pty Limited [2014] NSWDC 99

The application for security for costs was dismissed because the owners corporation did not bring itself within r 42.21(1), particularly r 42.21(1)(e). Mr Han and Mrs Min were natural persons, real plaintiffs with a real interest in the proceedings, and were not nominal plaintiffs suing only for another's benefit. The Court was also not satisfied that they would be unable to pay the defendants' costs if ordered to do so. The proceedings were bona fide, and delay in bringing the application and the substantial costs already incurred further weighed against an order.

Jurisdiction
Australia
Judgment Date
24 January 2014
Procedural Posture
Civil Security for Costs Application / Interlocutory Application
Outcome
Application for security for costs dismissed.
Legal Topics
['security for Costs' 'impecuniosity' 'nominal Plaintiff' 'trustee Personal Liability for Costs' 'prospects of Success' 'delay' 'past Costs']
['civil Procedure' 'strata Schemes' 'trusts' 'negligence'] ['security for Costs' 'impecuniosity' 'nominal Plaintiff' 'trustee Personal Liability for Costs' 'prospects of Success' 'delay' 'past Costs']

Case Brief

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Procedural Posture

Civil Security for Costs Application / Interlocutory Application

Legal Issues

  1. 1 ['Whether the owners corporation was entitled to security for costs under Uniform Civil Procedure Rules 2005, r 42.21.' "Whether the plaintiffs' case was sufficiently weak to support an order for security for costs." 'Whether the trust or the plaintiffs were impecunious or unable to meet an adverse costs order.' 'Whether Mr Han and Mrs Min were nominal plaintiffs suing for the benefit of another person within r 42.21(1)(e).' 'Whether delay and costs already incurred weighed against ordering security for costs.']

Ratio Decidendi

The application for security for costs was dismissed because the owners corporation did not bring itself within r 42.21(1), particularly r 42.21(1)(e). Mr Han and Mrs Min were natural persons, real plaintiffs with a real interest in the proceedings, and were not nominal plaintiffs suing only for another's benefit. The Court was also not satisfied that they would be unable to pay the defendants' costs if ordered to do so. The proceedings were bona fide, and delay in bringing the application and the substantial costs already incurred further weighed against an order.

Court Disposition

Application for security for costs dismissed.

Orders

  • ['The application for security for costs dismissed.' "The first defendant, The Owners - Strata Plan No 21608, pay the plaintiffs' costs of today, and otherwise the costs of the application be costs in the proceedings."]