New South Wales Court of Appeal CITATION : Mirambeena Properties P/L v Amcon Constructions P/L [2000] NSWCA 383 FILE NUMBER(S) : CA 40266/00 HEARING DATE(S) : 15/08/00 JUDGMENT DATE : 15 August 2000 Mirambeena Properties Pty Limited (ACN 070 133 194) & 2 ORS PARTIES : v Amcon Constructions Pty Limited (ACN 054 498 743) & 2 ORS JUDGMENT OF : Meagher JA at 1; Beazley JA at 11; Fitzgerald JA at 12 LOWER COURT JURISDICTION : District Court LOWER COURT 7109/98 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : COUNSEL : Appellant: M Christie Respondent: J Faulkner SOLICITORS : Appellant: Doyles Construction Lawyers Respondent: Paul Hines Solicitors CATCHWORDS : Application for leave to appeal against refusal to order security for costs - whether fact that proceedings would be discontinued if an order for security were made is a relevant consideration - where similar application for stay made one year earlier - application dismissed. CASES CITED: Concrete Constructions v Dellner Framework (1999) NSW COA 16 DECISION : Summons dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40266/00 MEAGHER JA BEAZLEY JA FITZGERALD JA Tuesday, 15 August 2000 MIRAMBEENA PROPERTIES PTY LIMITED (ACN 070 133 194) & 2 ORS v AMCON CONSTRUCTIONS PTY LIMITED (ACN 054 498 743) & 2 ORS JUDGMENT 1 MEAGHER JA: This is an application which on the face is brought by a company called Mirambeena Properties Pty Ltd and two individuals, Messrs Richard and Stephen Frith who together seem to share the title of the "claimant" for security of costs against Amcon Constructions Pty Ltd, Paul Murdoch Building Service Pty Ltd and Paul Murdoch who again together seem to share the title of the "opponent". The dispute is in the nature of a building dispute. 2 We are told: "The claimant was the principal and the opponent was the contractor". 3 I do not think this could possibly be right because of the multiplicity of parties. I accept that the corporation part of the claimant was a principal and one of the corporations in the component was a contractor. The corporate claimant terminated the contract between itself and whoever the other party was, who claims damages in the amount of $474,665 presumably against all three members of the opponent for the latter's breach of contract. 4 We are told that the opponent, presumably all three parties of it, by way of a cross claim claimed the sum of $750,000 for unpaid work, loss of profit and delay costs. The corporate claimant or the corporate claimant plus the two personal claimants sought an order for security of costs against one or more of the opponents in respect of the cross claim in the amount of $102,540. That offer was refused by Patten DCJ and we are now faced with an application for leave to appeal against his Honour's order. 5 The opponent or all three of them is or are cross claimants as well as the defendants. The cross claim apparently raised the same issues as the defence and the defence raise the same substantial issues as the statement of claim. The claimants or some of them apparently made an offer in court that if an order for security were made upon its or their application and a stay was granted, the claimant would discontinue the proceedings. His Honour was not impressed. 6 The financial position of the opponent, either one or all three of them, may well be unsound and seems to be depreciating by the minute. 7 There may be some truth in the submissions made to us on behalf of the claimants that a judge should take into account the fact that a proceeding would be discontinued. In the present case his Honour did not take into account the mere fact that an offer to discontinue had been made and he said he would take into account but did not regard it of much substance or use. His Honour further said that if in fact there was a discontinuance by the claimant, he would perhaps reconsider the matter. 8 In that way I do not think what his Honour said or did in any way contradicted what this Court said in Concrete Constructions v Dalma Formwork (1999) NSW CA 16 in support of his submission. In any event it seems to me that his Honour was clearly correct in dismissing the application. One reason alone will suffice. 9 The similar application for stay had been made a year earlier and unsuccessfully. This fact was not exactly highlighted to us in the submissions of the claimant. Nor was any explanation forwarded to his Honour about what relevant events have occurred in the interval which would justify the making of the second application. His Honour pointed to two of them only, one is further financial deterioration in the position of the opponent and two the offer, the contingent offer, to withdraw the claim made by the claimant. His Honour decided after due consideration of all the factors that neither of those two additional factors should make a difference in the result and therefore found that the application for security should be dismissed. 10 For the reasons which I have attempted to give I think his Honour was perfectly correct and in my view the summons should be dismissed with costs. 11 BEAZLEY JA: I agree. 12 FITZGERALD JA: I agree. 13 MEAGHER JA: That will be the order of the Court. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.