Gabriel v Grech [2019] NSWSC 1163

Gabriel v Grech [2019] NSWSC 1163

Security for costs was refused because, although the plaintiff was of modest means, had not given evidence, the costs exceeded the amount in dispute and the appeal appeared weak but not hopeless, the second defendant did not establish special circumstances within UCPR r 50.8 or the Court's inherent jurisdiction; impecuniosity alone, even if proved, would not suffice. Leave to file and serve a notice of contention was granted because the delay was explained, no appeal hearing date or appeal books existed, the plaintiff did not demonstrate real prejudice, and the notice of contention would assist in resolving the real issues in dispute.

Jurisdiction
Australia
Judgment Date
11 September 2019
Procedural Posture
Supreme Court Appeal Proceedings From Local Court Proceedings; Amended Notice of Motion / Application for Security for Costs of the Appeal and for Leave or Extension of Time to File and Serve a Notice of Contention
Outcome
The cross defendant's application for security for costs was refused; leave was granted to file and serve a notice of contention; access was granted to the Local Court file; costs of the amended notice of motion were reserved.
Legal Topics
['security for Costs' 'uniform Civil Procedure Rules 2005 (nsw) R 50.8' 'special Circumstances' 'notice of Contention' 'appeals From Local Court' 'access to Local Court File']
['practice and Procedure' 'civil Procedure' 'appeals' 'costs'] ['security for Costs' 'uniform Civil Procedure Rules 2005 (nsw) R 50.8' 'special Circumstances' 'notice of Contention' 'appeals From Local Court' 'access to Local Court File']

Case Brief

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Procedural Posture

Supreme Court Appeal Proceedings From Local Court Proceedings; Amended Notice of Motion / Application for Security for Costs of the Appeal and for Leave or Extension of Time to File and Serve a Notice of Contention

Legal Issues

  1. 1 ["Whether the plaintiff should be ordered to provide security for the second defendant's costs of the application for leave to appeal and/or the appeal." "Whether special circumstances were established for security for costs under UCPR r 50.8 or the Court's inherent jurisdiction." 'Whether the second defendant should be granted leave or an extension of time to file and serve a notice of contention.' 'Whether Mark Gabriel, who was not a party in the Local Court proceedings, was a party to or could be joined in the appeal proceedings.']

Ratio Decidendi

Security for costs was refused because, although the plaintiff was of modest means, had not given evidence, the costs exceeded the amount in dispute and the appeal appeared weak but not hopeless, the second defendant did not establish special circumstances within UCPR r 50.8 or the Court's inherent jurisdiction; impecuniosity alone, even if proved, would not suffice. Leave to file and serve a notice of contention was granted because the delay was explained, no appeal hearing date or appeal books existed, the plaintiff did not demonstrate real prejudice, and the notice of contention would assist in resolving the real issues in dispute.

Court Disposition

The cross defendant's application for security for costs was refused; leave was granted to file and serve a notice of contention; access was granted to the Local Court file; costs of the amended notice of motion were reserved.

Orders

  • ["The cross defendant's application for security for costs is refused." 'The cross defendant is granted leave to file and serve a notice of contention as set out in paragraph [23] of its submissions.' 'The notice of contention is to be filed and served within 14 days.' 'Access is granted to both parties to the Local...