S J Hooper Pty Ltd v Cockburn & 3 Ors [1999] NSWSC 1151

S J Hooper Pty Ltd v Cockburn & 3 Ors [1999] NSWSC 1151

The plaintiff failed to establish a material change in circumstances justifying variation of the security for costs orders. Although Mrs Hooper had now signed the deed of guarantee, the assets of Mr and Mrs Hooper were insufficient relative to the $100,000 security ordered, so the deed did not provide adequate protection to the defendants. Mr Hooper was not yet a party because leave to join him only operated once the stay was lifted, and in any event his financial position would not materially alter the position before Master Harrison.

Jurisdiction
Australia
Judgment Date
30 November 1999
Procedural Posture
Notice of Motion in Negligence and Breach of Contract Proceedings Concerning Security for Costs / Interlocutory Application Under SCR Pt 42 R12 for Discharge or Stay/variation of Security for Costs Orders
Outcome
Plaintiff's notice of motion dismissed.
Legal Topics
['security for Costs' 'stay of Proceedings' 'variation of Orders After Judgment' "solicitors' Negligence" 'limitation Period']
['civil Procedure' 'professional Negligence' 'contract'] ['security for Costs' 'stay of Proceedings' 'variation of Orders After Judgment' "solicitors' Negligence" 'limitation Period']

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Procedural Posture

Notice of Motion in Negligence and Breach of Contract Proceedings Concerning Security for Costs / Interlocutory Application Under SCR Pt 42 R12 for Discharge or Stay/variation of Security for Costs Orders

Legal Issues

  1. 1 ["Whether matters occurring after the earlier security for costs orders justified discharge or variation of the plaintiff's obligation to provide security for costs." 'Whether a deed of guarantee executed by Mr and Mrs Hooper provided adequate security in place of cash security of $100,000.' 'Whether Mr Hooper had become a party to the proceedings so that his assets were available to satisfy any costs order.']

Ratio Decidendi

The plaintiff failed to establish a material change in circumstances justifying variation of the security for costs orders. Although Mrs Hooper had now signed the deed of guarantee, the assets of Mr and Mrs Hooper were insufficient relative to the $100,000 security ordered, so the deed did not provide adequate protection to the defendants. Mr Hooper was not yet a party because leave to join him only operated once the stay was lifted, and in any event his financial position would not materially alter the position before Master Harrison.

Court Disposition

Plaintiff's notice of motion dismissed.

Orders

  • ["The plaintiff's notice of motion is dismissed." "The plaintiff is to pay the defendants' costs of and incidental to the notice of motion."]