Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers [2018] NSWCA 53

Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers [2018] NSWCA 53

Exceptional circumstances justified security for costs because the litigation history, Riva's repeated non-payment of costs orders, Mr Ferella's statements and conduct, and Riva's lack of available assets made it apparent that Riva would not meet any further costs order; there was no evidence that an order would stultify the proceedings; and the amount of $70,000 was supported by unchallenged evidence and appropriately allowed for the possibility of indemnity costs.

Jurisdiction
Australia
Judgment Date
22 March 2018
Procedural Posture
Judicial Review Proceedings; Application for Security for Costs / Court of Appeal Procedural Ruling on Notice of Motion Filed on 19 December 2017
Outcome
Application for security for costs granted.
Legal Topics
['security for Costs' 'exceptional Circumstances' 'costs Orders' 'indemnity Costs']
['civil Procedure' 'appeals' 'judicial Review'] ['security for Costs' 'exceptional Circumstances' 'costs Orders' 'indemnity Costs']

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Procedural Posture

Judicial Review Proceedings; Application for Security for Costs / Court of Appeal Procedural Ruling on Notice of Motion Filed on 19 December 2017

Legal Issues

  1. 1 ['Whether exceptional circumstances existed under Uniform Civil Procedure Rules 2005 (NSW), Pt 59.11 to justify ordering security for costs in judicial review proceedings.' "Whether a security for costs order would stultify Riva NSW Pty Ltd's judicial review proceedings." 'What quantum of security for costs should be ordered.']

Ratio Decidendi

Exceptional circumstances justified security for costs because the litigation history, Riva's repeated non-payment of costs orders, Mr Ferella's statements and conduct, and Riva's lack of available assets made it apparent that Riva would not meet any further costs order; there was no evidence that an order would stultify the proceedings; and the amount of $70,000 was supported by unchallenged evidence and appropriately allowed for the possibility of indemnity costs.

Court Disposition

Application for security for costs granted.

Orders

  • ['Riva NSW Pty Ltd, within twenty-one (21) days of this date, is to provide security for the costs of Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers in the sum of $70,000, by paying that sum into Court, or, if the parties are able to agree, by way of bank cheque or direct transfer into the...