Jazabas v Haddad [2008] NSWSC 593

Jazabas v Haddad [2008] NSWSC 593

Although there had been some changed circumstances and some public interest in the contamination issues, the personal undertakings offered by Mr and Mrs Haigh were of little real worth because they appeared impecunious and had no personal assets of real value. If the undertakings did have real pecuniary worth, those assets could be used to provide security. Public interest did not outweigh the reasons for maintaining security, and Botany Council's substantial unpaid costs from prior substantially similar proceedings provided an additional reason to maintain the stay. The notice of motion to lift the stay was therefore dismissed.

Jurisdiction
Australia
Judgment Date
17 June 2008
Procedural Posture
Notice of Motion to Lift Stay of Proceedings and Security for Costs / Procedural Ruling in the Common Law Division
Outcome
Plaintiffs' notice of motion dismissed; stay of proceedings remained in place; plaintiffs ordered to pay defendants' costs.
Legal Topics
['security for Costs' 'stay of Proceedings' 'lifting a Stay' 'corporate Plaintiffs' 'personal Undertakings by Shareholders' 'public Interest Litigation' 'unpaid Costs of Prior Proceedings']
['civil Procedure' 'costs' 'corporations' 'planning and Environmental Law'] ['security for Costs' 'stay of Proceedings' 'lifting a Stay' 'corporate Plaintiffs' 'personal Undertakings by Shareholders' 'public Interest Litigation' 'unpaid Costs of Prior Proceedings']

Case Brief

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Procedural Posture

Notice of Motion to Lift Stay of Proceedings and Security for Costs / Procedural Ruling in the Common Law Division

Legal Issues

  1. 1 ['Whether the stay of proceedings made on 9 June 2006 should be lifted under s 67 of the Civil Procedure Act 2005.' 'Whether changed circumstances, including personal undertakings by the shareholders/directors, justified discharge of the security for costs stay.' 'Whether the proceedings would be stultified if the security for costs order remained in place.' 'Whether public interest considerations concerning contamination and risk around the Botany/Randwick industrial area justified lifting the stay.' 'Whether unpaid costs from prior proceedings against Botany Council provided an additional basis to maintain the stay under Rule 12.10 of the Uniform Civil Procedure Rules.']

Ratio Decidendi

Although there had been some changed circumstances and some public interest in the contamination issues, the personal undertakings offered by Mr and Mrs Haigh were of little real worth because they appeared impecunious and had no personal assets of real value. If the undertakings did have real pecuniary worth, those assets could be used to provide security. Public interest did not outweigh the reasons for maintaining security, and Botany Council's substantial unpaid costs from prior substantially similar proceedings provided an additional reason to maintain the stay. The notice of motion to lift the stay was therefore dismissed.

Court Disposition

Plaintiffs' notice of motion dismissed; stay of proceedings remained in place; plaintiffs ordered to pay defendants' costs.

Orders

  • ["The plaintiffs' notice of motion filed 7 January 2008 is dismissed." "The plaintiffs are to pay the defendants' costs as agreed or assessed."]