O'Keefe v Seafresh Holdings Pty Ltd trading as Westmore Seafoods [2009] NSWSC 1090

O'Keefe v Seafresh Holdings Pty Ltd trading as Westmore Seafoods [2009] NSWSC 1090

Although the plaintiff was ordinarily resident outside New South Wales and impecunious, his impecuniosity was caused or contributed to by the alleged conduct of the defendants and an order for security would stifle his proceedings. The conditional costs agreement did not show that he was suing for another's benefit. Those factors outweighed the difficulty caused by his residence in Ireland, so security for costs was refused.

Jurisdiction
Australia
Judgment Date
15 October 2009
Procedural Posture
Personal Injury Damages Claim; Notice of Motion for Security for Costs / Procedural Ruling on Defendants' Motion for Security for Costs and Related Document Production/privilege Issue
Outcome
Defendants' motion for security for costs dismissed.
Legal Topics
['security for Costs' 'plaintiff Resident Outside New South Wales' 'impecuniosity' 'conditional Costs Agreement' 'settlement Privilege' 'costs Agreement Privilege']
['civil Procedure' 'evidence' 'personal Injury'] ['security for Costs' 'plaintiff Resident Outside New South Wales' 'impecuniosity' 'conditional Costs Agreement' 'settlement Privilege' 'costs Agreement Privilege']

Case Brief

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Procedural Posture

Personal Injury Damages Claim; Notice of Motion for Security for Costs / Procedural Ruling on Defendants' Motion for Security for Costs and Related Document Production/privilege Issue

Legal Issues

  1. 1 ["Whether the Court should order the plaintiff, who resides in Ireland and is impecunious, to provide security for the defendants' costs under UCPR 42.21." 'Whether a conditional costs agreement with a success fee meant that the plaintiff was suing not for his own benefit but for the benefit of another person.' 'Whether s 131(2)(h) of the Evidence Act 1995 rendered a costs agreement not privileged.']

Ratio Decidendi

Although the plaintiff was ordinarily resident outside New South Wales and impecunious, his impecuniosity was caused or contributed to by the alleged conduct of the defendants and an order for security would stifle his proceedings. The conditional costs agreement did not show that he was suing for another's benefit. Those factors outweighed the difficulty caused by his residence in Ireland, so security for costs was refused.

Court Disposition

Defendants' motion for security for costs dismissed.

Orders

  • ["The defendants' motion for security for costs be dismissed." "The defendants pay the plaintiff's costs of and incidental to the motion, as agreed or assessed."]