Sywak v Visnic [No 2] [2010] NSWSC 374

Sywak v Visnic [No 2] [2010] NSWSC 374

Security for costs was refused because the defendant did not establish a discretionary basis for the order: the prior costs orders had not been assessed or quantified so no failure to honour an identifiable costs liability was shown, there was no evidence establishing a need for security or inability to pay, and the plaintiff's claim was not shown to be a sham, lacking bona fides, or so unmeritorious as to justify security. As the defendant failed on all relief sought in the amended notice of motion, costs followed the event in favour of the plaintiff.

Jurisdiction
Australia
Judgment Date
30 April 2010
Procedural Posture
Application for Security for Costs and Costs / Amended Notice of Motion After Earlier Dismissal of Paragraphs 2 and 3
Outcome
Defendant's amended notice of motion dismissed; defendant ordered to pay the plaintiff's costs of the amended notice of motion.
Legal Topics
['security for Costs' 'inherent Jurisdiction' 'unpaid Costs Orders' 'vexatious or Harassing Proceedings' 'stay of Proceedings' 'costs Follow the Event']
['civil Procedure' 'costs' 'equity'] ['security for Costs' 'inherent Jurisdiction' 'unpaid Costs Orders' 'vexatious or Harassing Proceedings' 'stay of Proceedings' 'costs Follow the Event']

Case Brief

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Procedural Posture

Application for Security for Costs and Costs / Amended Notice of Motion After Earlier Dismissal of Paragraphs 2 and 3

Legal Issues

  1. 1 ['Whether the Court should exercise its inherent jurisdiction to order security for costs against a natural person resident in New South Wales where r 42.21 Uniform Civil Procedure Rules 2005 (NSW) did not apply.' 'Whether alleged unpaid prior costs orders justified security for costs or showed the proceedings were vexatious or harassing when the costs had not been quantified or assessed.' "Whether the plaintiff's claim was bona fide and had reasonably good prospects, or was so unmeritorious that security for costs should be ordered." "Whether the defendant should pay the plaintiff's costs of the amended notice of motion."]

Ratio Decidendi

Security for costs was refused because the defendant did not establish a discretionary basis for the order: the prior costs orders had not been assessed or quantified so no failure to honour an identifiable costs liability was shown, there was no evidence establishing a need for security or inability to pay, and the plaintiff's claim was not shown to be a sham, lacking bona fides, or so unmeritorious as to justify security. As the defendant failed on all relief sought in the amended notice of motion, costs followed the event in favour of the plaintiff.

Court Disposition

Defendant's amended notice of motion dismissed; defendant ordered to pay the plaintiff's costs of the amended notice of motion.

Orders

  • ["Dismiss the defendant's amended notice of motion." "Order the defendant to pay the plaintiff's costs of the amended notice of motion."]