Lawrence Waterhouse Pty Ltd v Port Stephens Council [2008] NSWCA 235

New South Wales Court of Appeal

CITATION: Lawrence Waterhouse Pty Ltd v Port Stephens Council [2008] NSWCA 235

HEARING DATE(S): 15 September 2008 JUDGMENT OF: McColl JA

EX TEMPORE JUDGMENT DATE: 15 September 2008

DECISION: (1) Appeal dismissed. (2) Appellant to pay respondent's costs as agreed or as assessed.

CATCHWORDS: PRACTICE AND PROCEDURE - failure to comply with security for costs order - whether appeal should be dismissed - Uniform Civil Procedure Rules 42.21(3)

CASES CITED: Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271 Dovade Pty Ltd v Shaddock [1999] NSWSC 142

PARTIES: Port Stephens Council (Applicant) Lawrence Waterhouse Pty Ltd (Respondent)

FILE NUMBER(S): CA 40638/07

COUNSEL: M C Fraser (Applicant) W Lawrence (Director of Respondent)

SOLICITORS: Harris Wheeler (Applicant)

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): 41101/06

LOWER COURT JUDICIAL OFFICER: Lloyd J

LOWER COURT DATE OF DECISION: 30 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWLEC 605

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40638/07

McColl JA

Monday 15 September 2008 LAWRENCE WATERHOUSE PTY LTD v PORT STEPHENS COUNCIL Judgment

1 HER HONOUR: The Court has before it a Notice of Motion filed on behalf of Port Stephens Council, the respondent to the appeal, on 21 August 2008 seeking an order dismissing the appeal pursuant to Uniform Civil Procedure Rules 2005 42.21(3). That sub-rule enables the Court to dismiss proceedings where a party has failed to comply with an order to provide security for costs. 2 Mr Wayne Lawrence, a director of the appellant, appeared unopposed on its behalf. It was common ground that he was authorised by the appellant to do so. 3 Although the Council is formally the applicant, and Lawrence Waterhouse Pty Ltd is formally the respondent (UCPR 51.2) I shall refer to them, for ease of comprehension respectively, as the appellant and the respondent. 4 On 7 July 2008 the Court ordered that the appellant provide $25,000 as security for costs on or before 18 August 2008. That amount has not been paid. 5 The respondent advances its prayer for relief on the basis not only of the appellant's default in compliance with the order to pay security for costs, but also on the basis of evidence that the appellant has taken steps to put itself in the position where it could not satisfy any costs order which might ultimately be made in the respondent's favour. The respondent points to steps the appellant has taken to charge its property and also to steps it has taken, the respondent asserts, actively to remove property from the reach of any costs order. 6 The respondent relies first on the affidavit of Mr Martin Richard Ball sworn 10 September 2008. For convenience I will deal with the contents of that affidavit in order although the particular points to which I have just referred appear towards its end. 7 Annexure A to the affidavit comprises a substantial body of correspondence exchanged between the appellant and the solicitors for the respondent, Messrs Harris Wheeler, between 10 July 2008, three days after the security for costs order was made, and 10 September, namely late last week. The bulk of that correspondence is from the appellant. 8 On 10 July 2008 the appellant wrote to Messrs Harris Wheeler drawing attention to the expense of the litigation and the likely expense of the appeal and asking that firm to seek instructions as to mediation in order to resolve further litigation and to save costs. Messrs Harris Wheeler responded the same day conveying their instructions that the respondent did not consider the proceedings suitable for mediation. The letter also conveyed the solicitors' instructions not to engage in further communication with the appellant unless and until the security for costs ordered by the Court had been provided. Thereafter, as I have said, the bulk of the correspondence emanating from the appellant constituted various unsuccessful attempts to elicit a response from Messrs Harris Wheeler. 9 On 22 August 2008, four days after the time for complying with the security for costs order expired, the appellant wrote to Messrs Harris Wheeler asking that any notice of motion, presumably to have the proceedings dismissed for want of compliance, be deferred until after 28 August for two reasons. One related to another case and can be set to one side. The other asserted that a sale had been secured "subject to inspection on a property and a purchaser has agreed to fund the $25,000 subject to the inspection". The inspection was said to be going to take place on 27 August. In that event the letter contemplated that the security for costs funds could be deposited on or before 29 August 2008. 10 On 22 August Messrs Harris Wheeler replied advising the notice of motion had already been filed, serving the same and enclosing an affidavit in support. The letter advised that should the security be provided prior to the return date, today 15 September, the firm would seek instructions as to whether to withdraw the application. 11 On 29 August 2008 the appellant wrote to Harris Wheeler asking that firm to seek instructions as to whether the security for costs could be given by way of a charge over the company with "priority over the Director as to their charge". Alternatively the letter proposed depositing a bond with the Supreme Court of New South Wales.