Pun v Poon [2019] NSWSC 918

Pun v Poon [2019] NSWSC 918

Because the plaintiff was ordinarily resident outside Australia and had not shown assets within the jurisdiction, the jurisdictional threshold for security for costs was satisfied and those matters weighed strongly in favour of security. The plaintiff's asserted strong case, the alleged $200,000 contribution, the defendant's delay, and the existence of a partly offensive cross-claim did not disentitle the defendant to security, although the cross-claim and the prospect of mediation justified reducing and staging the security. The appropriate security was $90,000 in two tranches.

Jurisdiction
Australia
Judgment Date
17 July 2019
Procedural Posture
Defendant's Notice of Motion for Security for Costs in Equity Proceedings Concerning an Alleged Beneficial Interest in Land and Statutory Sale / Interlocutory Application Heard on 10 July 2019 and Determined on 17 July 2019
Outcome
Security for costs ordered in favour of the defendant; proceedings stayed if security is not provided; defendant granted liberty to apply for further security; plaintiff ordered to pay the defendant's costs of the motion.
Legal Topics
['security for Costs' 'plaintiff Ordinarily Resident Outside Australia' 'beneficial Interest in Land' 'trusts' 'statutory Sale' 'cross Claim']
['civil Procedure' 'costs' 'equity' 'property Law'] ['security for Costs' 'plaintiff Ordinarily Resident Outside Australia' 'beneficial Interest in Land' 'trusts' 'statutory Sale' 'cross Claim']

Case Brief

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Procedural Posture

Defendant's Notice of Motion for Security for Costs in Equity Proceedings Concerning an Alleged Beneficial Interest in Land and Statutory Sale / Interlocutory Application Heard on 10 July 2019 and Determined on 17 July 2019

Legal Issues

  1. 1 ["Whether the Court's jurisdiction to order security for costs under r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) was enlivened because the plaintiff was ordinarily resident outside Australia." "Whether discretionary factors including the strength of the plaintiff's case, alleged existing security, delay in bringing the application, and the nature of the defendant's cross-claim justified refusing security for costs." 'What amount and terms of security for costs should be ordered.']

Ratio Decidendi

Because the plaintiff was ordinarily resident outside Australia and had not shown assets within the jurisdiction, the jurisdictional threshold for security for costs was satisfied and those matters weighed strongly in favour of security. The plaintiff's asserted strong case, the alleged $200,000 contribution, the defendant's delay, and the existence of a partly offensive cross-claim did not disentitle the defendant to security, although the cross-claim and the prospect of mediation justified reducing and staging the security. The appropriate security was $90,000 in two tranches.

Court Disposition

Security for costs ordered in favour of the defendant; proceedings stayed if security is not provided; defendant granted liberty to apply for further security; plaintiff ordered to pay the defendant's costs of the motion.

Orders

  • ["Pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff to provide security for the defendant's costs in the amount of $90,000 in two tranches: $30,000 within 21 days of the order and $60,000 within 21 days after any mediation which does not resolve the proceedings or not less than 21...