Young v Cooke [2017] NSWCA 33

Young v Cooke [2017] NSWCA 33

Limited leave to appeal is granted because it is arguable that the primary judge's discretionary decision, requiring costs to be payable forthwith and staying proceedings, failed to take into account Mr Young's lack of fault in seeking adjournment, his impecuniosity, and the likelihood of stultifying the proceedings, which could amount to a miscarriage of discretion and significant injustice.

Jurisdiction
Australia
Judgment Date
06 March 2017
Procedural Posture
Application for Leave to Appeal / Leave to Appeal Decided; Limited Leave Granted
Outcome
Leave to appeal granted, limited to one ground.
Legal Topics
['adjournment' 'costs Orders' 'stay of Proceedings' 'security for Costs']
['civil Procedure' 'costs' 'judicial Review'] ['adjournment' 'costs Orders' 'stay of Proceedings' 'security for Costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Leave to Appeal Decided; Limited Leave Granted

Legal Issues

  1. 1 ["Whether the primary judge's decision that costs assessed in a gross sum of $3,500 should be payable forthwith and the proceedings stayed pending payment miscarried because: (a) failure to take into account that Mr Young was not at fault in seeking adjournment and such orders would likely stifle proceedings, as Mr Young was impecunious; or (b) the decision was plainly unreasonable in all the circumstances."]

Ratio Decidendi

Limited leave to appeal is granted because it is arguable that the primary judge's discretionary decision, requiring costs to be payable forthwith and staying proceedings, failed to take into account Mr Young's lack of fault in seeking adjournment, his impecuniosity, and the likelihood of stultifying the proceedings, which could amount to a miscarriage of discretion and significant injustice.

Court Disposition

Leave to appeal granted, limited to one ground.

Orders

  • ['Grant leave to appeal limited to the ground regarding the discretionary decision on costs and stay.' 'Direct Mr Young to file and serve a notice of appeal limited to this ground within 14 days.' 'Costs of the summons seeking leave to appeal are costs in the appeal.']