Nadeem v Bindaree Food Group Pty Ltd [2023] NSWCA 250

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nadeem v Bindaree Food Group Pty Ltd [2023] NSWCA 250 Hearing dates: 12 October 2023 Decision date: 23 October 2023 Before: Leeming JA at [1]; Adamson JA at [2] Decision: (1) Allow the appeal. (2) Set aside the orders made by Andronos SC DCJ on 5 May 2023 and, in lieu thereof, make the following orders: (a) Order the plaintiff to provide security for the defendant's costs by paying the amount of $7,500 into Court within 28 days of the date of this order. (b) Order the defendant to pay the plaintiff's costs of the defendant's notice of motion filed on 24 January 2023. (3) Make no order as to the costs of the leave application or the appeal. Catchwords: LEAVE TO APPEAL — appeal against order for security for costs — discretionary matter of practice and procedure at interlocutory level — whether discretion miscarried — whether substantial risk of injustice to applicant if the Court were not to intervene — hearing of appeal directed by Chief Justice pursuant to s 46A(2) of Supreme Court Act 1970 (NSW) APPEAL — PRACTICE AND PROCEDURE — applicant brought claim in negligence in District Court for injury sustained while working for respondent on temporary work visa — applicant ordinarily resident in Fiji — order for security for costs made pursuant to s 42.21(1)(a) of Uniform Civil Procedure Rules 2005 (NSW) — impecuniosity of plaintiff — whether primary judge considered ease with which judgments of District Court could be enforced in Fiji — whether primary judge factored finding into assessment of whether security for costs ought be ordered — order should reflect differential cost of enforcement in Fiji Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.21 Supreme Court Act 1970 (NSW), s 46A Cases Cited: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Cowell v Taylor (1885) 31 Ch D 34 Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2011] NSWCA 84 Hession v Century 21 South Pacific Ltd (In Liq) (1992) 28 NSWLR 120 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Category: Principal judgment Parties: Sheikh Nadeem (Applicant) Bindaree Food Group Pty Ltd (Respondent) Representation: Counsel: P Beale (Applicant) J C Lee (Respondent)