Equa Building Services Pty Ltd as trustee for The Equa Trust v KLG Trading Pty Ltd [2022] NSWSC 997

Supreme Court New South Wales

Medium Neutral Citation: Equa Building Services Pty Ltd as trustee for The Equa Trust v KLG Trading Pty Ltd [2022] NSWSC 997 Hearing dates: 22 July 2022 Decision date: 28 July 2022 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) The plaintiff provide security for the defendant's costs in the sum of $300,000 by way of payment into Court or the provision of a bank guarantee in a form which is acceptable to the defendant or approved by the Court; (2) The security be provided in the following three tranches: (a) $100,000 within 21 days of the date of this judgment; (b) $100,000 within 21 days after the date on which the proceedings are set down for hearing; (c) $100,000 at least 14 days before the date on which the final hearing is scheduled to commence; (3) The proceedings be stayed if security is not provided in accordance with order (2) until such time as the amount of security then due is provided; (4) The plaintiff pay the defendant's costs of the notice of motion filed on 24 February 2022 and amended on 22 July 2022; and (5) Matter stood over for directions on 5 August 2022. Catchwords: COSTS — Security for costs — Relevant factors — Whether plaintiff's claim is properly classified as defensive where it relates to its rights under a contract the subject of a prior adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Whether plaintiff's impecuniosity was brought about by the defendant's conduct Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 167 Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2008] NSWSC 1329 Procorp Civil Pty Ltd v Napoli Excavations & Contracting Pty Ltd (No 2) [2006] NSWCA 147 Category: Procedural rulings Parties: Equa Building Services Pty Ltd (ACN 623 416 571) as trustee for The Equa Trust (ABN 60 323 953 136) (Plaintiff | Respondent) KLG Trading Pty Ltd (Defendant | Applicant) Representation: Counsel: DJ Byrne (Plaintiff | Respondent) DS Weinberger with Z Carrigan (Defendant | Applicant)