Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262 Hearing dates: 13 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Before: Gleeson JA at [1]; Basten AJA at [30]; Griffiths AJA at [31] Decision: (1) Grant leave to appeal on ground 1. (2) Dispense with the filing of a notice of appeal. (3) Appeal allowed. (4) Set aside the orders made by Levy SC DCJ on 19 August 2022, and in lieu, order that: (a) the plaintiff is to provide security for the first, second, third and fourth defendants' costs of the proceedings in the sum of $125,000 in the following tranches: (i) the sum of $75,000 by 31 January 2023; and (ii) the sum of $50,000 to be paid eight weeks prior to the date allocated for the trial of the proceedings; (b) the security the subject of par (a) is to be provided by payments into the District Court or provision of bank guarantees from an Australian bank; (c) in default of compliance with par (a) the proceedings are stayed; (d) the plaintiff pay the first, second, third and fourth defendants' costs of the motion filed 13 October 2021. (5) Direct that any case management application in relation to the orders referred to in (4) above be made in the District Court. (6) The respondent to pay the appellants' costs in this Court. (7) Direct the appellants to serve a copy of these orders on the respondent within 7 days. Catchwords: APPEALS – Leave to appeal – security for costs – security refused on basis of stultification and oppression – where respondent did not raise issues of stultification or oppression – no evidence of impecuniosity of those standing behind the respondent – denial of procedural fairness – clear injustice justifying interference with procedural decision Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law) Corporations Act 2001 (Cth), s 1335 District Court Act 1973 (NSW), s 127(2)(a) Uniform Civil Procedure Rules 2005 (NSW), r 42.21(1)(d), 42.21(1A)(a), (b), (h), (l) Cases Cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1; [1984] FCA 34 Black Hill Residents Group Inc v Marist Youth Care Ltd [2021] NSWCA 314 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Milosevska v Milosevski [2019] NSWSC 711 Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 Pioneer Park Pty Ltd (in liq) & Others v Australia and New Zealand Banking Group Limited [2007] NSWCA 344; (2007) 65 ACSR 383 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 Category: Principal judgment Parties: Carrano Investment Holding Pty Ltd (First applicant) Abal Investment Holding Pty Ltd (Second applicant) Antonio Frances Carrano (Third applicant) Danielo Cesar Abal (Fourth applicant) Siennamia Investments Pty Ltd (Respondent) Representation: Counsel: P Reynolds (Applicants)