Wattyl Australia Pty Limited v GBP Enterprises Pty Ltd [2005] NSWSC 289

New South Wales Supreme Court

CITATION : Wattyl Australia Pty Limited v GBP Enterprises Pty Ltd [2005] NSWSC 289

HEARING DATE(S) : 31/03/05

JUDGMENT DATE : 8 April 2005

JUDGMENT OF : Newman AJ

DECISION : Appeal dismissed with costs.

CATCHWORDS : Appeal from Master - Discretion of Master - Security for costs

Supreme Court Rules Part 53 Rule 2 (1(e)) LEGISLATION CITED : Corporations Act 2001 (Cth) S1335(1)

Beach Petroleum NL v Johnson 7 ACSR 203 Buckley v Bennel Design & Constructions Pty Ltd (1974) 1ACLR 301 Erolen v Baulkham Hills Shire Council 10 ACSR 441 CASES CITED : House v King (1936) 55 CLR 499 Micallef v ICI Australia Operations Pty Ltd (2001) CA 274 (24 August 2001) Sir Lindsay Parkinson & Co Ltd v Triplan Limited (1973) 2 AER 273 Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 11 ACLR 616

Wattyl Australia Pty Limited (Appellant) PARTIES : GBP Enterprises Pty Ltd (Respondant)

FILE NUMBER(S) : SC 11815/03

A.Spencer (Appellant) COUNSEL : S.Burchett (Respondent)

Deacons Lawyers (Appellant) SOLICITORS : Jason Li Lawyers (Respondant)

LOWER COURT JURISDICTION : Supreme Court (Master)

LOWER COURT FILE NUMBER(S) : 11815/03

LOWER COURT JUDICIAL OFFICER : Master Harrison

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

Friday 8 April 2005

11815/03 WATTYL AUSTRALIA PTY LIMITED v GPB ENTERPRISES PTY LTD

JUDGMENT 1 NEWMAN AJ: This is an appeal against that part of a decision made by Master Harrison in which the learned Master declined to order the respondent to the appeal to furnish security for costs. 2 The Grounds of Appeal are as follows :- 1. The Master erred in law in holding (if she did so hold) that the Respondent's financial position had been contributed to by the conduct of the Appellant. 2. In the absence of evidence that the Respondent's financial position had been contributed to by the conduct of the Appellant the Master should not have concluded (if she did so) that it had. 3. The Master erred in law in holding (if she did so hold) that there was no reason to believe that the Respondent would be unable to pay the costs of the Appellant if ordered to do so. 4. Having found that the accounts of the Respondent for the years ended 30 June 2002 and 30 June 2003 were accurate, the Master should have found: (i) that there was reason to believe that the Respondent would be unable to pay the costs of the Appellant on the Cross Claim if ordered to do so; and/or