I and J Formwork Pty Ltd v Donya Constructions Pty Ltd [2021] NSWSC 940

Supreme Court New South Wales

Medium Neutral Citation: I and J Formwork Pty Ltd v Donya Constructions Pty Ltd [2021] NSWSC 940 Hearing dates: On the papers Decision date: 30 July 2021 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Security for costs ordered Catchwords: COSTS – security for costs – where sole director and shareholder of corporate plaintiff offered undertaking to meet any costs order – where liabilities of director exceeded assets of director – where assets unlikely to be easily realised Cases Cited: Aquatic Air Pty Ltd v Siewert [2016] NSWCA 130 Bright Ceiling Systems Pty Ltd v Merhis Contracting Pty Ltd [2016] NSWSC 631 Vintage Marine Art Pty Ltd v Henderson & Cremer (No 2) (2019) 101 NSWLR 77; [2019] NSWCA 252 Category: Consequential orders Parties: I and J Formwork Pty Ltd (Plaintiff/Respondent) Donya Constructions Pty Ltd (First Defendant/Applicant) Sam Ebadeh Ahvasi (Second Defendant/Applicant) Representation: Counsel: B Oliak (Defendants/Applicants)

Solicitors: Brown Wright Stein (Plaintiff/Respondent) Galluzzo Lawyers (Defendants) File Number(s): 2021/140847

Judgment 1. The plaintiff, I and J Formwork Pty Ltd, seeks damages and other relief against the first defendant, Donya Constructions Pty Ltd, arising out of a contract pursuant to which the defendant, as subcontractor to the plaintiff, was engaged to perform formworks at a building site in Edmondson Park. 2. The defendants seek security for costs in the sum of $116,358.00. 3. The plaintiff does not dispute that the jurisdiction to order security has been enlivened. 4. The plaintiff answers the defendants' application for security by offering a personal undertaking by the plaintiff's sole director and shareholder, Mr Sarkis Boudaher, to be responsible for any costs order made in favour of the defendants against the plaintiff. 5. The parties agree that the Court may deal with this matter on the papers. 6. My Associate wrote to the parties to say that I would be assisted to receive a statement by Mr Boudaher of his assets and liabilities. 7. On 20 July 2021, Mr Boudaher swore an affidavit deposing that his assets and liabilities are as follows: "Asset Value Hino 300 Tabletop Truck $15,000.00 Kia Rio Car $4,000.00 Nissan Navara Ute $20,000.00 Power tools $5,000.00 Building materials (Scaffold and Metal Frames) $80,000.00 Extended size box trailer, enclosed $2,500.00 Extended height horse float $6,000.00 Household furniture $10,000.00 Whitegoods/electrical $10,000.00 Jewellery $15,000.00 Recreational equipment $3,000.00 Superannuation $8,760.00 Savings $6,200.00 100% Shareholding in I and J Formwork Pty Ltd Unknown at this time 100% Shareholding in Pareli Pty Ltd $100.00 Total Assets $185,560.00