Hassoun v Wesfarmers General Insurance Limited t/a Lumley General

[2016] NSWCA 76

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Application to vacate order for security
4. › Whether material change of circumstances
5. › Whether impecuniosity worsening constitutes material change
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.21(3)
1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Failure to comply with order for security for costs
4. › Factors relevant to dismissal
5. › Whether interests of justice separately considered
6. › Civil Procedure Act 2005 (NSW), ss 56, 61
7. › Uniform Civil Procedure Rules 2005 (NSW), r 12.7(1)
1. Practice and Procedure
2. › Leave to appeal
3. › Interlocutory orders
4. › Whether question of principle or substantial injustice shown
5. › District Court Act 1973 (NSW), s 127(2)(a)

Quick Take

A deepening of impecuniosity does not constitute a material change of circumstances justifying discharge of a security for costs order where the applicant was already found to be impecunious at the time the original order was made. Evidence that was available at the original hearing but not adduced does not constitute a material change of circumstances. Where a plaintiff has failed to comply with a security for costs order, is unlikely to comply in the foreseeable future, and is unlikely to be able to fund the proceedings, dismissal for want of prosecution is justified.