KDL Building v Mount [2006] NSWSC 474

New South Wales Supreme Court

CITATION : KDL Building v Mount [2006] NSWSC 474

HEARING DATE(S) : 21/04/2006

JUDGMENT DATE : 21 April 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 04/21/2006

DECISION : Order that the plaintiff give security for the defendants' costs of the proceedings in a form acceptable to the Registrar, in two stages, first until trial, and secondly for trial.

CATCHWORDS : COSTS - Security for costs - impecunious corporate plaintiff - relevant discretionary considerations - where principal of corporation does not offer to make own assets amenable to order and does not prove personal inability to do so – security in stages

LEGISLATION CITED : Corporations Act 2001 (Cth), s 1335(1) Uniform Civil Procedure Rules 2005 (NSW), r 42.21(1)(d)

Beech Petroleum NL v Johnson (1992) 10 ACLR 525 CASES CITED : Pacific Acceptance Corporation Limited v Forsyth (No 2) (1967) 85 WN Pt 1 (NSW) 715 Equity Access Ltd v Westpac Banking Corporation [1989] 18 BR 14-972

KDL Building Pty Ltd (P) PARTIES : Duncan Mount (D1) Sally Mount (D2)

FILE NUMBER(S) : SC 55086/05

COUNSEL : Mr J A D de Greenlaw (P) Mr D R Meltz (D)

SOLICITORS : Lucas v Staggs (P) MBP Legal (D1 & D2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

BRERETON J

Friday 21 April 2006

55086/05 KDL BUILDING PTY LIMITED v DUNCAN MOUNT & 1 OR

JUDGMENT 1 HIS HONOUR: The plaintiff KDL Building Pty Limited sues the defendants Duncan and Sally Mount, for moneys said to be due to the plaintiff under a home building contract dated 4 June 2001, by which KDL or its principal Kevin Lucas was engaged by Mr and Mrs Mount to perform home building works at their property at 54 Lane Cove Road, Ingleside. Initially, KDL commenced proceedings in the Consumer Trader and Tenancy Tribunal (CTTT) claiming a sum of $264,428.37. Subsequently, KDL obtained the leave of that Tribunal to amend its claim to an amount in excess of $700,000, with the consequence that, on KDL's application, the proceedings were transferred to this Court. By Motion filed on 17 March 2006, Mr and Mrs Mount seek security for their costs of the proceedings.