Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206 Hearing dates: 20 September 2022 Date of orders: 18 October 2022 Decision date: 18 October 2022 Before: Brereton JA at [1] Mitchelmore JA at [9] Decision: (1) The application for an extension of time to seek leave to appeal from that part of the decision of Abadee DCJ in Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd & Anor [2021] NSWDC 210 that required the first applicant to pay the future costs of the second respondent is refused. (2) Grant the applicants an extension of time to seek leave to appeal from that part of the decision of Gibson DCJ in Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2021] NSWDC 651 by which her Honour dismissed the proceedings and ordered the first applicant to pay the costs of the claim and the cross-claim as agreed or assessed. (3) Grant leave to appeal on Ground 2 of the draft notice of appeal regarding that part of the decision referred to in Order 2. (4) The application for leave to appeal is otherwise dismissed. (5) Costs of the application for leave be costs in the appeal. Catchwords: COSTS – security for costs – power to order – where application made by first defendant in District Court for security for future costs of proceedings – where security not provided and proceedings against first and second defendants dismissed – whether power of dismissal under rule 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) conditional on defendant seeking dismissal having security for costs order in its favour – whether discretion to dismiss proceedings miscarried – grant of leave to appeal COSTS – security for costs – power to order – whether rule 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) is invalid pursuant to s 109 of the Constitution (Cth) due to direct inconsistency with s 1335 of the Corporations Act 2001 (Cth) – no substantive inconsistency demonstrated APPEALS – leave to appeal – where application filed out of time – where delay attributable to inadvertence of solicitors rather than applicants – consideration of discretionary factors for extension of time under rule 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) APPEALS – leave to appeal – adequacy of reasons for costs of cross-claim – no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98 Constitution (Cth), s 109 Corporations Act 2001 (Cth), s 1335 District Court Act 1973 (NSW), s 127(1) and (2)(a) Judiciary Act 1903 (Cth), ss 78B and 79 Uniform Civil Procedure Rules 2005 (NSW), rules 6.24, 42.21(1) and (3), 50.10(2), 51.8, 51.12 Cases Cited: Asian Investments Corporation Ltd v Symons Unreported, 10 April 1996, BC9601190 BE Financial Pty Ltd v Das [2012] NSWCA 164 D v Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 Grant Samuel Corporation Finance Pty Ltd v Fletcher (2015) 254 CLR 477; [2015] HCA 8 Huang v The Owners of Strata Plan No 7632 [2021] NSWCA 194 Macatangay v New South Wales (No 2) [2009] NSWCA 272 McGinn v Cranbrook School [2016] NSWCA 226 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Jingalong Pty Ltd v Todd [2014] NSWCA 330 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Re Will of Gilbert (1946) 46 SR (NSW) 318 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Thomatis v McLean (1896) 13 WN (NSW) 68 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Category: Principal judgment Parties: Ranclose Investments Pty Ltd (First Applicant) Wayne Williamson (Second Applicant) Leda Management Services Pty Ltd (First Respondent) Leda Holdings Pty Ltd (Second Respondent) Representation: Counsel: M Robinson SC, J Lucy (Applicants) AC Casselden SC, MJ Connor (Respondents)