Bruce Harvey Enterprises Pty Ltd v Forrest and Anor [2002] NSWSC 962

Bruce Harvey Enterprises Pty Ltd v Forrest and Anor [2002] NSWSC 962

Although the conceded inability of BHE to pay the defendants' costs gave the Court jurisdiction to order security, the discretion should not be exercised because an order would stultify the proceedings, Mr Harvey as the person behind BHE was himself impecunious, and the defendants had not shown that BHE's case on damage and causation was plainly untenable or lacked reasonable prospects.

Jurisdiction
Australia
Judgment Date
17 October 2002
Procedural Posture
Professional Negligence Proceedings; Application for Security for Costs / Notices of Motion for Security for Costs Filed on 20 August 2002 and 3 September 2002
Outcome
Applications for security for costs dismissed with costs.
Legal Topics
['security for Costs' 'impecunious Corporate Plaintiff' 'stultification of Proceedings' "solicitors' Negligence"]
['civil Procedure' 'corporations' 'professional Negligence'] ['security for Costs' 'impecunious Corporate Plaintiff' 'stultification of Proceedings' "solicitors' Negligence"]

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Procedural Posture

Professional Negligence Proceedings; Application for Security for Costs / Notices of Motion for Security for Costs Filed on 20 August 2002 and 3 September 2002

Legal Issues

  1. 1 ["Whether the Court had jurisdiction to order the plaintiff company to provide security for the defendants' costs." 'Whether the discretion to order security for costs should be exercised where the plaintiff company could not provide security and the proceedings would be stultified.' "Whether the plaintiff's case was so weak on damage and causation that security should be ordered."]

Ratio Decidendi

Although the conceded inability of BHE to pay the defendants' costs gave the Court jurisdiction to order security, the discretion should not be exercised because an order would stultify the proceedings, Mr Harvey as the person behind BHE was himself impecunious, and the defendants had not shown that BHE's case on damage and causation was plainly untenable or lacked reasonable prospects.

Court Disposition

Applications for security for costs dismissed with costs.

Orders

  • ['Having noted the undertaking given by Mr Bruce Harvey to the Court to provide, on request, a personal guarantee in favour of the defendants or either of them in relation to any costs awarded against the plaintiff in the cause.' 'Notices of motion filed respectively on 20 August 2002 and 3 September 2002...