Hansen v Pennefather [2003] NSWSC 1049

Hansen v Pennefather [2003] NSWSC 1049

Because the plaintiff was ordinarily resident outside New South Wales, had no assets in the State, the defendant was likely to incur significant costs defending a genuinely contested professional negligence claim, the plaintiff's evidence of inability to provide security and of the order stultifying the proceedings was unsatisfactory, the delay did not justify refusal, and the defendant's insurance was treated as irrelevant, justice required an order for security for costs. The amount sought was reduced to $30,000 because the Court had reservations about aspects of the defendant's costs estimates.

Jurisdiction
Australia
Judgment Date
14 November 2003
Procedural Posture
Professional Negligence Claim for Damages for Alleged Negligent Provision of Physiotherapy Services / Defendant's Motion for Security for Costs
Outcome
Defendant's motion for security for costs granted in part; security ordered in the amount of $30,000 and proceedings stayed until security is given.
Legal Topics
['security for Costs' 'plaintiff Ordinarily Resident Outside the State' 'professional Indemnity Insurance' 'discretion to Order Security' 'stay of Proceedings Pending Security']
['civil Procedure' 'professional Negligence'] ['security for Costs' 'plaintiff Ordinarily Resident Outside the State' 'professional Indemnity Insurance' 'discretion to Order Security' 'stay of Proceedings Pending Security']

Case Brief

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Procedural Posture

Professional Negligence Claim for Damages for Alleged Negligent Provision of Physiotherapy Services / Defendant's Motion for Security for Costs

Legal Issues

  1. 1 ["Whether the plaintiff, being ordinarily resident outside New South Wales, should be ordered to provide security for the defendant's costs." "Whether the defendant's professional indemnity insurance was relevant to the exercise of the discretion to order security for costs." 'Whether the plaintiff had established inability to provide security or that an order would prevent her from pursuing the proceedings.' 'Whether delay in bringing the motion justified refusing security.' 'What amount of security should be ordered.']

Ratio Decidendi

Because the plaintiff was ordinarily resident outside New South Wales, had no assets in the State, the defendant was likely to incur significant costs defending a genuinely contested professional negligence claim, the plaintiff's evidence of inability to provide security and of the order stultifying the proceedings was unsatisfactory, the delay did not justify refusal, and the defendant's insurance was treated as irrelevant, justice required an order for security for costs. The amount sought was reduced to $30,000 because the Court had reservations about aspects of the defendant's costs estimates.

Court Disposition

Defendant's motion for security for costs granted in part; security ordered in the amount of $30,000 and proceedings stayed until security is given.

Orders

  • ['That the plaintiff provide security for costs to the defendant for costs of and incidental to the proceedings and that proceedings be stayed until the security is given.' 'That such security be in an amount of $30,000.' 'That such security be paid into court and the registrar directed to deposit such security into...