The Estate of Sikos v TBPL1 Pty Ltd [2021] NSWSC 1523

Supreme Court New South Wales

Medium Neutral Citation: The Estate of Sikos v TBPL1 Pty Ltd [2021] NSWSC 1523 Hearing dates: 19 November 2021 Decision date: 26 November 2021 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Security for costs ordered; application to stay proceedings and strike out paragraphs of the List Statement refused Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – where s 25 judgment entered in favour of builder – where time to claim damages under building contract out of time – where earlier proceedings claiming damages under building contract discontinued – where principals now seek declaration of the parties' rights under the building contract purportedly in aid of injunction to restrain builder from being unjustly enriched by enforcing the s 25 judgment – whether such a claim is liable to be struck out CIVIL PROCEDURE – stay of proceedings – application by reason of unpaid costs in earlier proceedings – whether same or substantially the same cause of action in these proceedings as in those earlier proceedings COSTS – security for costs – relevant factors – impecuniosity – whether proceedings in substance defensive – other factors Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001(Cth) Limitation Act 1969 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Consulting Engineers Pty Ltd v Mistrina Pty Ltd (in liq) [2021] NSWSC 449 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Grosvenor Constructions (NSW) Pty Ltd (in admin) v Musico [2004] NSWSC 344 In the matter of Cooperbrown Pty Ltd [2019] NSWSC 1341 In the matter of Force Corp Pty Ltd (in liq) [2020] NSWSC 1842; 149 ACSR 451 In the matter of Ming Tian Real Property Pty Ltd [2020] NSWSC 212; 145 ACSR 329 Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223 Category: Procedural rulings Parties: The Estate of Elias Sikos (First Plaintiff/Respondent) Mistrina Pty Ltd (in liq) (Second Plaintiff/Respondent) TBPL1 Pty Ltd (Defendant/Applicant) Representation: Counsel: D Hume (First Plaintiff/Respondent) N J Kidd SC with F Salama (Defendant/Applicant)