Li v NSW

[2013] NSWCA 165

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Security for costs
4. › Plaintiff ordinarily resident outside jurisdiction
5. › Impecunious plaintiff with no assets in jurisdiction
6. › Whether primary judge misdirected herself as to applicable test
7. › Whether 'special circumstances' test applies
8. › Whether exercise of discretion miscarried
9. › Uniform Civil Procedure Rules 2005 (NSW), r 42.21(a)
1. Appeal
2. › Leave to appeal
3. › Interlocutory decisions
4. › Security for costs orders
5. › Whether substantial reasons to allow appellate review
6. › Whether error of principle resulting in substantial injustice
1. Appeal
2. › Standard of appellate review
3. › Discretionary decisions
4. › Whether discretion miscarried in House v The King sense
5. › Whether primary judge plainly wrong

Quick Take

Impecuniosity of a non-resident plaintiff is relevant both to the oppressiveness of a security for costs order (weighing in favour of the plaintiff) and to the prejudice to the defendant by way of inability to recover costs (weighing in favour of the defendant). The great weight historically accorded to non-residence and absence of assets in the jurisdiction on a security for costs application applies regardless of whether the non-resident has assets outside the jurisdiction. Even where a primary judge may have applied an incorrect 'special circumstances' test, the order will be upheld if the judge in fact carried out the required balancing exercise and would have reached the same result on correct principles.