Sharbine v Harkham and another [2007] NSWIRComm 177

Sharbine v Harkham and another [2007] NSWIRComm 177

Given the applicant's residence outside Australia, lack of assets within the jurisdiction, and evidence of impecuniosity, and in light of the enforcement difficulties in the UAE, exceptional circumstances exist justifying an order for security for costs. These factors outweigh the risk of stifling a genuine claim, particularly since the respondents undertook not to proceed with their own claim if the applicant cannot pay security, and an adjournment could be consented to.

Parties
Applicant: Samuel Sharbine; First Respondent: Benjamin Harkham; Second Respondent: J Hillyard Pty Ltd (formerly Aussie Sweets Pty Ltd, formerly Aussie Sweets & Chocolates Pty Limited)
Jurisdiction
Australia
Judgment Date
17 July 2007
Procedural Posture
Application for Relief Under S 106 of the Industrial Relations Act 1996; Application for Security for Costs / Interlocutory Application for Security for Costs Prior to Hearing of Substantive S 106 Proceedings
Outcome
Application for security for costs granted
Legal Topics
Security for Costs, Jurisdiction, Impecuniosity, Overseas Residence of Applicant, Enforcement of Costs Orders
Industrial Law Civil Procedure Security for Costs Jurisdiction Impecuniosity Overseas Residence of Applicant Enforcement of Costs Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 17 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Samuel Sharbine

Applicant

Benjamin Harkham

First Respondent

J Hillyard Pty Ltd (formerly Aussie Sweets Pty Ltd, formerly Aussie Sweets & Chocolates Pty Limited)

Second Respondent

Procedural Posture

Application for Relief Under S 106 of the Industrial Relations Act 1996; Application for Security for Costs / Interlocutory Application for Security for Costs Prior to Hearing of Substantive S 106 Proceedings

Legal Issues

  1. 1 Whether to order the applicant to provide security for costs under s 106 proceedings
  2. 2 Whether the applicant's residence outside the jurisdiction and lack of assets warrant an order for security for costs
  3. 3 Whether such an order would stifle the applicant's genuine claim

Ratio Decidendi

Given the applicant's residence outside Australia, lack of assets within the jurisdiction, and evidence of impecuniosity, and in light of the enforcement difficulties in the UAE, exceptional circumstances exist justifying an order for security for costs. These factors outweigh the risk of stifling a genuine claim, particularly since the respondents undertook not to proceed with their own claim if the applicant cannot pay security, and an adjournment could be consented to.

Court Disposition

Application for security for costs granted

Orders

  • The applicant provide security for costs to the respondents in the amount of $30,000 by 10am Monday 23 July, 2007.
  • The proceedings are stayed unless otherwise ordered by the Court in the event security for costs in the amount of $30,000 is not paid by 10am Monday 23 July, 2007.