Grace v Bennie [2017] NSWSC 172

Grace v Bennie [2017] NSWSC 172

Balancing the competing rights of the parties, the Court considered that the plaintiff had not paid or secured the $186,141 found by the costs assessor to have been overcharged and had not paid costs of the earlier incompetent Supreme Court appeal, while also taking account of the plaintiff's alleged impecuniosity and risk that an onerous order would stifle the appeal. A stay on terms was therefore fair, with $10,000 to be paid into Court as an amount going some way towards the defendant's costs from the earlier incompetent appeal.

Jurisdiction
Australia
Judgment Date
06 March 2017
Procedural Posture
Notice of Motion for Stay of Proceedings and Security for Costs / Interlocutory Application
Outcome
Proceedings stayed on terms; defendant awarded costs of the notice of motion.
Legal Topics
['stay of Proceedings' 'security for Costs' 'costs Assessment' 'abuse of Process']
['practice and Procedure' 'costs'] ['stay of Proceedings' 'security for Costs' 'costs Assessment' 'abuse of Process']

Case Brief

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Procedural Posture

Notice of Motion for Stay of Proceedings and Security for Costs / Interlocutory Application

Legal Issues

  1. 1 ["Whether the proceedings should be stayed under s 67 of the Civil Procedure Act 2005 (NSW) or the Court's inherent jurisdiction." 'Whether any stay should be imposed on terms requiring the plaintiff to pay money into Court.' "Whether the plaintiff should pay the defendant's costs of the notice of motion."]

Ratio Decidendi

Balancing the competing rights of the parties, the Court considered that the plaintiff had not paid or secured the $186,141 found by the costs assessor to have been overcharged and had not paid costs of the earlier incompetent Supreme Court appeal, while also taking account of the plaintiff's alleged impecuniosity and risk that an onerous order would stifle the appeal. A stay on terms was therefore fair, with $10,000 to be paid into Court as an amount going some way towards the defendant's costs from the earlier incompetent appeal.

Court Disposition

Proceedings stayed on terms; defendant awarded costs of the notice of motion.

Orders

  • ['These proceedings are stayed until the plaintiff pays the sum of $10,000 into Court.' "The plaintiff is to pay the defendant's costs of the notice of motion filed 11 July 2016 on an ordinary basis as agreed or assessed."]