Kealy v SHD Services Pty Limited as Trustee of the SHDS Unit Trust and Ors [2011] NSWSC 709

Kealy v SHD Services Pty Limited as Trustee of the SHDS Unit Trust and Ors [2011] NSWSC 709

The Court ordered security for costs limited to the expected expense of enforcement in Ireland, because the plaintiff resides outside the jurisdiction and there is no reciprocal enforcement arrangement between Ireland and Australia. The amount was fixed at $AU40,000.00, found to be sufficient for enforcement costs only. A broader order was not justified as it would unjustly stifle the plaintiff’s case and was not required by the circumstances.

Parties
Plaintiff: Cian Kealy; First Defendant: SHD Services Pty Limited as Trustee of the SHDS Unit Trust; Second Defendant: Brian Boyd; Third Defendant: Mark Morgan
Jurisdiction
Australia
Judgment Date
07 July 2011
Procedural Posture
Interlocutory Application / Ruling on Defendants' Notice of Motion for Security for Costs
Outcome
Security for costs granted, proceedings stayed until security provided, costs in the cause
Legal Topics
Security for Costs, Practice and Procedure, Ordinary Residence of Plaintiff, Enforcement of Foreign Judgments
Civil Procedure Security for Costs Practice and Procedure Ordinary Residence of Plaintiff Enforcement of Foreign Judgments

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Parties

Cian Kealy

Plaintiff

SHD Services Pty Limited as Trustee of the SHDS Unit Trust

First Defendant

Brian Boyd

Second Defendant

Mark Morgan

Third Defendant

Procedural Posture

Interlocutory Application / Ruling on Defendants' Notice of Motion for Security for Costs

Legal Issues

  1. 1 Whether security for costs should be ordered where the plaintiff is now ordinarily resident outside New South Wales
  2. 2 Whether the order for security should be limited to the estimated costs of enforcing an order for costs in Ireland

Ratio Decidendi

The Court ordered security for costs limited to the expected expense of enforcement in Ireland, because the plaintiff resides outside the jurisdiction and there is no reciprocal enforcement arrangement between Ireland and Australia. The amount was fixed at $AU40,000.00, found to be sufficient for enforcement costs only. A broader order was not justified as it would unjustly stifle the plaintiff’s case and was not required by the circumstances.

Court Disposition

Security for costs granted, proceedings stayed until security provided, costs in the cause

Orders

  • Plaintiff to provide security for the defendants’ costs by paying $AU40,000.00 into court within 14 days.
  • Until such security is given, the proceedings are stayed.