NEW SOUTH WALES SUPREME COURT
CITATION: Touma v Gold Holdings [2002] NSWSC 1027
CURRENT JURISDICTION: Common Law Division
FILE NUMBER(S): 11958 of 2002
HEARING DATE{S): 28 October 2002
JUDGMENT DATE: 28/10/2002
PARTIES:
Daniel Touma (Plaintiff)
v
Gold Holdings Pty Ltd (Defendant)
JUDGMENT OF: Master Malpass
LOWER COURT JURISDICTION: Local Court
LOWER COURT FILE NUMBER(S): 997 of 2001 Burwood Local Court
LOWER COURT JUDICIAL OFFICER: J Fleming LCM
COUNSEL:
N/A (Plaintiff)
Mr V Bedrossian (Defendant)
SOLICITORS:
Chahoud Kalouche & Associates (Plaintiff)
Smith Monti Legal (Defendant)
CATCHWORDS:
Security for costs of appeal
threshold requirement of special circumstances
discretionary power
ACTS CITED:
N/A
DECISION:
See Paragraphs 13 - 14.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Master Malpass
Monday 28 October 2002
11958 of 2002 Daniel Touma v Gold Holdings Pty Limited
JUDGMENT
1 Master : The plaintiff and the defendant have been in dispute inter alia in the Local Court. The proceedings brought by the plaintiff were unsuccessful. The plaintiff now brings an appeal to this Court.
2 The appeal has been set down for hearing. On that same day, the defendant made an application for security for costs (being the costs of the appeal). That application was heard today.
3 The defendant has read an affidavit in support of the application. In addition to this material, there has been the tender of certain documentation.
4 The relevant rule requires the applicant to demonstrate special circumstances. This is a threshold requirement that must be established before the court can exercise the discretionary power to order that security be given. What “special circumstances” may mean in this context is perhaps a matter for debate. It is perhaps best approached by looking at the particular circumstances of the case that is presently before the court. In performing that exercise, the court should bear in mind that there needs to be something out of the ordinary or unusual (see inter alia Haywood v Collaroy Services Beach Club [2002] NSWSC 991).
5 I shall now refer to certain of the material before the court. This reference is not intended to be exhaustive.
6 It is not in dispute that the plaintiff is impecunious. It may well be that if an order is made the plaintiff may not be in a position to maintain this appeal.
7 The defendant contends that the appeal is misconceived and manifestly hopeless. The court has been taken to the grounds that are to be found in the Summons. These do not suggest that the plaintiff’s case is a strong one. There has been failure to provide any particulars of the grounds (inter alia a failure to comply with a court order). There is also material from the Local Court proceedings (including transcript and judgment).
8 In the circumstances of this case, I do not think that the court should prejudge what may happen on the hearing of the appeal. However, it can be said that the material before it conveys a very clear impression that the appeal may have very little prospects of success.
9 The position between the parties is complicated by the fact that the parties have obtained orders for costs during the course of their dispute. The defendant has two orders. The plaintiff has obtained an order in the Federal Court. It is put forward as being in a sum equivalent to what is sought by way of security. The alleged quantification is disputed and remains at large. However, in the context of this case it may be in a significant amount.
10 The real issue joined between the parties is whether or not there are special circumstances. The lack of prospects of success is one factor at least which is relied on by the defendant as making this a case in which there should be found to be special circumstances. It also inter alia presents the impecuniosity of the plaintiff as a factor.
11 I also bear in mind that this application is brought at a relatively late stage in the proceedings. The appeal has been set down for hearing and costs have already been incurred by the plaintiff.
12 The defendant bears the onus of satisfying the court that there are special circumstances and that the discretionary power should be exercised in its favour.
13 In my view, in the circumstances of this case, that onus has not been discharged. Accordingly I dismiss the Notice of Motion.
14 The general rule is that costs follow the event. I am not satisfied that there are any circumstances in this case which justify a departure from that rule. Accordingly I order that the defendant pay the costs of the application. The exhibits may be returned.
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LAST UPDATED: 01/11/2002