STOREY v JOHNS [1997] NSWCA 298

STOREY v JOHNS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON, HANDLEY and COLE JJA 8 December 1997

[1997] NSWCA 298

Cole JA Before this Court is a summons seeking leave to appeal against the first, second and seventh interlocutory orders made by Twigg DCJ on 23 October 1997. His Honour had before him a Notice of Motion filed, or at least dated, 13 October 1997. The Notice of Motion sought orders relevantly, that the defendant provide security for costs. His Honour gave judgment and made orders:

"(1) On the plaintiff's motion dated 13 October 19971 order that the defendant pay costs assessed at $15,000 to provide for any order for costs that may be made in favour of the plaintiff at the hearing.

(2) That the defendant pay the sum of $15,000 to his own solicitors Messrs Makinson & d'Apice, 68 Pitt Street, Sydney, such costs to be held by them in their trust account and to be invested by them in an interest bearing deposit in trust for the defendant for costs to abide the further order of the Court; and

(3) That the costs of the motion be costs in the cause."

The motion seeking the orders that the defendant pay security for costs was filed on 13 October in circumstances where application had been made for an adjournment of a hearing. The application for an adjournment was heard by Garling DCJ and was granted. On that application, costs were reserved. However, the motion seeking costs was filed apparently at or shortly prior to the granting of that adjournment. There was material placed before the Court to suggest that the solicitor for the applicant in the Notice of Motion thought that by filing the Notice of Motion she might protect her client in relation to costs.

It is an unusual circumstance for a court to order that a defendant give security for costs. The authorities are referred to in the judgment of Twigg DCJ and it is unnecessary to repeat them. It is sufficient to say that it is a rare circumstance indeed that a court would order a defendant to provide security for costs for the simple reason that a plaintiff may commence proceedings but a defendant is dragged willingly or unwillingly into the litigation. In those circumstances, there is rarely justification for an order that a defendant should provide security for costs.