HP Mercantile Pty Ltd v Plevey [2014] NSWCA 374

HP Mercantile Pty Ltd v Plevey [2014] NSWCA 374

Applications for leave to appeal should be dismissed because the Court had power to make orders for security for costs in the 2012 proceedings, including costs incurred in the 2013 proceedings where those claims are made solely by way of defence, even though the arguments regarding the construction of r 42.21(1) and s 1335(1) were not fully debated before the primary judge and are not appropriate for consideration in this appeal.

Parties
Applicant: HP Mercantile Pty Ltd; First Respondent: Gregory Plevey; Second Respondent: Jillian Plevey; Third Respondent: Antony Kubicki; Fourth Respondent: Mark Venables
Jurisdiction
Australia
Judgment Date
30 October 2014
Procedural Posture
Interlocutory Application / Leave to Appeal
Outcome
Summons seeking leave to appeal dismissed with costs.
Legal Topics
Security for Costs, Appeal, Costs
Civil Procedure Security for Costs Appeal Costs

Case Brief

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Parties

HP Mercantile Pty Ltd

Applicant

Gregory Plevey

First Respondent

Jillian Plevey

Second Respondent

Antony Kubicki

Third Respondent

Mark Venables

Fourth Respondent

Procedural Posture

Interlocutory Application / Leave to Appeal

Legal Issues

  1. 1 Whether the Court had power to order security for costs in proceedings where the applicant was not the plaintiff
  2. 2 Whether the amount of security was properly assessed for costs incurred in other proceedings
  3. 3 Whether costs incurred in defensive claims brought in separate proceedings are within the description 'defendant's costs'

Ratio Decidendi

Applications for leave to appeal should be dismissed because the Court had power to make orders for security for costs in the 2012 proceedings, including costs incurred in the 2013 proceedings where those claims are made solely by way of defence, even though the arguments regarding the construction of r 42.21(1) and s 1335(1) were not fully debated before the primary judge and are not appropriate for consideration in this appeal.

Court Disposition

Summons seeking leave to appeal dismissed with costs.

Orders

  • Dismiss Summons seeking leave to appeal.
  • Order applicant to pay respondents' costs.