Cohen v David [2018] NSWDC 214

Cohen v David [2018] NSWDC 214

The stay was refused because the plaintiff did not show any good reason why David Legal should be deprived of the fruits of its judgment, had not paid earlier legal fees or judgment debts, and had not identified substantive objections to the assessed costs beyond alleged non-service. Security for costs was ordered because the plaintiff was ordinarily resident outside Australia, there were disputed service and address issues, judgment monies remained unpaid, and the plaintiff had instructed his solicitor not to accept service of a bankruptcy notice, which together amounted to special circumstances under rule 50.8.

Jurisdiction
Australia
Judgment Date
09 August 2018
Procedural Posture
Civil Statutory Appeal From Costs Assessment Determinations / Notices of Motion for Stay of Enforcement and Security for Costs
Outcome
Plaintiff's motion for a stay of enforcement dismissed; defendants' motion for security for costs granted in the amount of $50,000.00; proceedings stayed until security is paid into court.
Legal Topics
['security for Costs' 'special Circumstances' 'stay of Enforcement' 'costs Assessment Review' 'procedural Fairness']
['civil Procedure' 'costs' 'legal Profession'] ['security for Costs' 'special Circumstances' 'stay of Enforcement' 'costs Assessment Review' 'procedural Fairness']

Case Brief

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Procedural Posture

Civil Statutory Appeal From Costs Assessment Determinations / Notices of Motion for Stay of Enforcement and Security for Costs

Legal Issues

  1. 1 ['Whether enforcement of the costs determinations, review determination and District Court judgment should be stayed.' "Whether special circumstances justified an order for security for costs of the plaintiff's statutory appeal." 'What amount of security for costs should be ordered.']

Ratio Decidendi

The stay was refused because the plaintiff did not show any good reason why David Legal should be deprived of the fruits of its judgment, had not paid earlier legal fees or judgment debts, and had not identified substantive objections to the assessed costs beyond alleged non-service. Security for costs was ordered because the plaintiff was ordinarily resident outside Australia, there were disputed service and address issues, judgment monies remained unpaid, and the plaintiff had instructed his solicitor not to accept service of a bankruptcy notice, which together amounted to special circumstances under rule 50.8.

Court Disposition

Plaintiff's motion for a stay of enforcement dismissed; defendants' motion for security for costs granted in the amount of $50,000.00; proceedings stayed until security is paid into court.

Orders

  • ["The plaintiff's motion for a stay of enforcement is dismissed." 'The plaintiff pay into court the sum of $50,000.00 as security for costs within 28 days of this date.' 'The proceedings are stayed until the monies referred to in order 2 are paid into court.' "The plaintiff is to pay the defendant's costs of and...