Young v Cooke [2017] NSWCA 33

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Young v Cooke [2017] NSWCA 33 Hearing dates: 24 February 2017 Decision date: 06 March 2017 Before: Macfarlan JA at [1] Gleeson JA at [2] Decision: (1) Grant leave to appeal limited to the following ground:

• the primary judge's discretionary decision that costs (assessed in a gross sum of $3,500) should be payable forthwith and the proceedings stayed pending payment of that sum to the defendants miscarried because: (a) his Honour failed to take into account as a relevant factor that Mr Young was not at fault in having to seek an adjournment of the hearing on 20 July 2016 and such orders would likely stifle the proceedings, it being common ground that Mr Young was impecunious; or (b) the decision was plainly unreasonable in all the circumstances.

(2) Direct that Mr Young file and serve a notice of appeal limited to the ground referred to in order (1) above within 14 days.

(3) Costs of the summons seeking leave to appeal are costs in the appeal. Catchwords: APPEAL – application for leave to appeal – circumstances where grant of leave appropriate – challenge to discretionary costs order made payable forthwith and stay order following successful adjournment application – where party seeking adjournment not at fault and is impecunious – where effect of orders likely to stultify the proceedings - whether substantial injustice if leave to appeal not granted Legislation Cited: Civil Liability Act 2002 (NSW) Companion Animals Act 1998 (NSW), ss 69(2), (3) Local Court Act 2007 (NSW), ss 39(1), 40(1) Supreme Court Act 1970 (NSW), ss 69, 101(2)(c), 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), rr 50.8, 51.12(2)(d), 51.50, 59.11 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Dillon v Gosford City Council [2011] NSWCA 328 House v R (1936) 55 CLR 499 ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307 J Aron Corporation and Another v Newmont Yandal Operations Pty Ltd and Others (2004) 183 FLR 90; [2004] NSWSC 533 Lamb (Trustee) in the matter of Ariss (Bankrupt) v Ariss [2006] FAC 582 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Milcap Publishing Group AB v Coranto Corporation Pty Ltd (1995) 32 IPR 34 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Re South Downs Packers Pty Ltd [1984] 2 Qd R 559 Re the Will of Gilbert (1946) 46 SR (NSW) 318; [1981] HCA 39 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Toppro Pty Ltd v Yoo [2016] NSWCA 119 Trewenack v Clippers Anchorage Pty Ltd (1983) Ritchie Practice Decisions 13,030 Wood v Balfour [2011] NSWCA 382 Young v Cooke [2016] NSWSC 408 Category: Principal judgment Parties: Mr Gary Young (Applicant) Mr Bill Cooke (First Respondent) Mrs Helena Cooke (Second Respondent) Representation: Counsel: Applicant (Self-represented) R Notley (Respondents)