GIO General Limited v Ali Elskaf [2024] NSWCA 8

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: GIO General Limited v Ali Elskaf [2024] NSWCA 8 Hearing dates: 29 January 2024 Date of orders: 29 January 2024 Decision date: 29 January 2024 Before: Simpson AJA Decision: The sum of $15,000 paid by the respondent into Court pursuant to a security for costs order made on 28 February 2019 be paid into the trust fund of Ligeti Partners, Solicitors. Legislation Cited: Uniform Civil Procedure Rule 18.2(2)(c) Category: Costs Parties: GIO General Limited (Applicant) Ali Elskaf (Respondent) Representation: Solicitors: Ligeti Partners (Applicant) John Stonham & Co Lawyers (Respondent) File Number(s): 2018/148552 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Court of Appeal Citation: [2019] NSWCA 23 Date of Decision: 20 February 2019 Before: Basten JA, Payne JA, Sackville AJA File Number(s): 2018/148552

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment]

Judgment 1. SIMPSON AJA: By notice of motion filed 7 August 2023, the applicant, GIO General Limited, seeks an order that a sum of $15,000 paid into Court by way of security for costs pursuant to order of 28 February 2019 be paid into the trust fund of the applicant's solicitors. The applicant had been unable to effect service of the notice of motion on the respondent (Ali Elskaf) and now seeks a further order pursuant to Uniform Civil Procedure Rule 18.2(2)(c) dispensing with the requirement for the notice to be served. 2. The application has a considerable history. Put briefly, in 2013 or thereabouts, the respondent made a claim against the applicant which had issued an insurance policy in respect of a motor vehicle owned by the respondent. In 2017, the claim failed and the respondent's proceedings were dismissed. The respondent appealed. In respect of the appeal, an order was made for security for costs in the sum of $15,000. That amount was paid into Court by the respondent. In September 2019, the appeal was dismissed and the respondent was ordered to pay the applicant's costs. 3. Between October 2019 and the present, the applicant has made numerous attempts to serve the respondent with relevant documents, including service of an application for assessment of costs. On each occasion, the applicant has been unable to effect service. By affidavit affirmed on 21 January 2024 by Ms Beynon, the applicant records a history of attempts to effect service, including by attendances at various addresses which it had reason to believe might have been occupied by the respondent. On each occasion, the attempt to serve was unsuccessful. 4. The evidence does disclose an attempt to serve the present notice of motion which also was unsuccessful. I am satisfied that sufficient attempts have been made and sufficient costs incurred, and that there is no likelihood that service will be able to be effected, and that further costs should not be wasted. Accordingly, I make an order pursuant to UCPR 18.2(2)(c), dispending with the requirement for service of the notice of motion of 7 August 2023. 5. The evidence in support of that notice of motion discloses that, as I have already said, the sum of $15,000 was paid into Court by way of security for costs. The relevant costs order is in excess of $15,000. The applicant has accordingly established its entitlement to the order sought in the notice of motion. The order I make is: the sum of $15,000 paid by the respondent into Court pursuant to a security for costs order made on 28 February 2019 be paid into the trust fund of Ligeti Partners, Solicitors.