David v Kazal (No 2) [2020] NSWSC 105

David v Kazal (No 2) [2020] NSWSC 105

The appropriate event for costs was the result of the defendants' notice of motion, not the ultimate result of the proceedings. The plaintiff succeeded in resisting a stay but failed to resist security for costs, while the defendants obtained security but not a stay and not the amount sought. The first and second defendants were entitled to seek security because the plaintiff was a United States resident with no assets in New South Wales, and no separate order against the third defendant was warranted. The parties' mixed success was adequately reflected by making no order as to the costs of the motion, with other proceeding costs reserved pending the foreign appeal.

Jurisdiction
Australia
Judgment Date
20 February 2020
Procedural Posture
Common Law Proceeding Seeking to Register United States Judgments; Costs Determination Following Notice of Motion for Stay and Security for Costs / On the Papers Determination of Costs Reserved After Interlocutory Notice of Motion
Outcome
No order as to the costs of the defendants' notice of motion filed on 16 August 2019, with each party to bear his own costs; costs of the proceedings otherwise reserved pending the outcome of the appeal by the first and second defendants in the US Ninth Circuit Court of Appeals.
Legal Topics
['party/party Costs' 'security for Costs' 'stay of Proceedings' 'foreign Judgments and Orders' 'costs Follow the Event' 'interlocutory Dispute']
['costs' 'private International Law' 'civil Procedure'] ['party/party Costs' 'security for Costs' 'stay of Proceedings' 'foreign Judgments and Orders' 'costs Follow the Event' 'interlocutory Dispute']

Case Brief

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Procedural Posture

Common Law Proceeding Seeking to Register United States Judgments; Costs Determination Following Notice of Motion for Stay and Security for Costs / On the Papers Determination of Costs Reserved After Interlocutory Notice of Motion

Legal Issues

  1. 1 ["Whether there should be no order as to the costs of the defendants' notice of motion for security for costs and a stay, or whether those costs should be reserved or apportioned." 'Whether the costs event should be treated as the result of the interlocutory notice of motion or as the result of the proceedings as a whole.' 'Whether a separate costs order should be made against the third defendant.']

Ratio Decidendi

The appropriate event for costs was the result of the defendants' notice of motion, not the ultimate result of the proceedings. The plaintiff succeeded in resisting a stay but failed to resist security for costs, while the defendants obtained security but not a stay and not the amount sought. The first and second defendants were entitled to seek security because the plaintiff was a United States resident with no assets in New South Wales, and no separate order against the third defendant was warranted. The parties' mixed success was adequately reflected by making no order as to the costs of the motion, with other proceeding costs reserved pending the foreign appeal.

Court Disposition

No order as to the costs of the defendants' notice of motion filed on 16 August 2019, with each party to bear his own costs; costs of the proceedings otherwise reserved pending the outcome of the appeal by the first and second defendants in the US Ninth Circuit Court of Appeals.

Orders

  • ["There be no order as to the costs of the defendants' notice of motion filed on 16 August 2019 (such costs to include the hearings on 3 September 2019, 6 December 2019 and 6 February 2020), with the intention that each party bear his own costs." 'Confirm order (4) made on 6 February 2020 that the costs of the...