DEE WHY VILLAGE PTY LTD v RECREATIONAL PLANNING ASSOCIATION PTY LTD RIPOLL HOLDINGS PTY LTD v RECREATIONAL PLANNING ASSOCIATION PTY LTD [1988] NSWCA 35

DEE WHY VILLAGE PTY LTD v RECREATIONAL PLANNING ASSOCIATION PTY LTD; RIPOLL HOLDINGS PTY LTD v RECREATIONAL PLANNING ASSOCIATION PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 29 April 1988

[1988] NSWCA 35

APPLICATIONS for security for costs in two related appeals — no new point involved.

ORDERS 1. Applications dismissed. 2. Costs of each application to be costs in the appeal in which it was made.

Priestley JA I think I should say that I do not find this an easy case in which to exercise discretion.

Two applications are before the court for security of costs. They arise in relation to two separate appeals from proceedings which were heard together before Cohen J. In one set of proceedings the substantial claim was that a company known as Recreational Planning Associates Pty Limited, which I shall simply call Planning, was beneficially entitled to a share of property held in trust by a company called Ripoll Holdings Pty Limited, which I shall call simply Ripoll.

The issue raised in the proceedings involved a great deal of evidence and concerned, so far as I can make out, trust property potentially of a very considerable value. I do not intend to go through any of the detail and the facts surrounding the central issue beyond the following summary version. Planning had entered into transactions with a company called Dee Why Village Pty Limited which involved the purchase of land and later the building of a retirement village on the land. Planning had a beneficial interest in the project being undertaken by Dee Why Village Pty Limited, but for present purposes it is not material to try and describe the nature of that interest.

Dee Why Village Pty Limited had entered into a contract to buy land and to pay a sizeable deposit upon a sizeable purchase price. Difficulties arose in regard to the financing of the whole project and the payment of the purchase price on the land. The three main principals concerned in the venture originally being carried out by means of Dee Why Village Pty Limited were Mr Colbron, Mr Poignand and Mr Courtney. When difficulties arose in regard to the completion of the transaction, the purchase of the land, Messrs Poignand and Courtney entered into a transaction whereby Ripoll became the purchaser of the land by an arrangement in which Dee Why Village Pty Limited took part. Thereafter the project was carried out through the vehicle of Ripoll. At the time when the change of vehicle took place there were conversations and transactions between the three main parties concerned, Planning, Dee Why Village Pty Limited and Ripoll. The greater part of these transactions between the parties took place on 28 and 29 August 1985.