Chen v Keddie [2009] NSWSC 762

Chen v Keddie [2009] NSWSC 762

Security for costs was appropriate because the Plaintiff was ordinarily resident outside New South Wales, enforcement of any costs order would require action in China, her evidence of financial position was inadequate, there was no evidence or assertion that the Defendants caused or contributed to her impecuniosity, and the possibility of stultification did not amount to special circumstances sufficient to outweigh the factors favouring security. To reduce the risk of stultification, security was ordered in staged payments totalling $40,000 rather than the $50,000 sought.

Jurisdiction
Australia
Judgment Date
07 August 2009
Procedural Posture
Application for Security for Costs in Proceedings Alleging Breach of Retainer and Negligence Against Former Solicitors / Interlocutory Application; Statement of Claim Filed and No Defence Yet Filed
Outcome
Security for costs ordered in stages; proceedings to be stayed until each due payment is made; parties to bring in Short Minutes of Order; Defendants' costs of the application to be costs in the cause.
Legal Topics
['security for Costs' 'foreign Resident Plaintiff' 'stultification of Proceedings' "solicitors' Retainer" 'motor Vehicle Proceedings Settlement']
['civil Procedure' 'costs' 'professional Negligence'] ['security for Costs' 'foreign Resident Plaintiff' 'stultification of Proceedings' "solicitors' Retainer" 'motor Vehicle Proceedings Settlement']

Case Brief

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Procedural Posture

Application for Security for Costs in Proceedings Alleging Breach of Retainer and Negligence Against Former Solicitors / Interlocutory Application; Statement of Claim Filed and No Defence Yet Filed

Legal Issues

  1. 1 ["Whether the Court should order the Plaintiff, who is ordinarily resident outside New South Wales, to provide security for the Defendants' costs under Part 42.21(1)(a) Uniform Civil Procedure Rules." "Whether the Plaintiff's impecuniosity and the possibility that a security order would stultify the proceedings should outweigh the factors favouring security." 'What amount and timing of security should be ordered if security is appropriate.' 'What costs order should be made on the security for costs application.']

Ratio Decidendi

Security for costs was appropriate because the Plaintiff was ordinarily resident outside New South Wales, enforcement of any costs order would require action in China, her evidence of financial position was inadequate, there was no evidence or assertion that the Defendants caused or contributed to her impecuniosity, and the possibility of stultification did not amount to special circumstances sufficient to outweigh the factors favouring security. To reduce the risk of stultification, security was ordered in staged payments totalling $40,000 rather than the $50,000 sought.

Court Disposition

Security for costs ordered in stages; proceedings to be stayed until each due payment is made; parties to bring in Short Minutes of Order; Defendants' costs of the application to be costs in the cause.

Orders

  • ['The Plaintiff should provide security in the sum of $40,000.' 'The sum of $10,000 is to be provided on or before 31 October 2009.' 'A further sum of $10,000 is to be provided on or before 30 April 2010.' 'A further sum of $10,000 is to be provided by 31 August 2010.' 'The balance of $10,000 is to be provided by 30...