NSW Caselaw
New South Wales Supreme Court
CITATION : Momentum Mortgages Ltd & Equity Trustees v Elmowy & Meehan [2010] NSWSC 950
HEARING DATE(S) : 23 August 2010
JUDGMENT DATE : 1 September 2010
JUDGMENT OF : Studdert AJ
1. By consent leave granted to the defendants and Ezcape St Projects Pty Ltd to file a cross claim in these proceedings. 2. The cross claim is to be filed and served within 21 days from today. DECISION : 3. Order that the first plaintiff provide security for the first and second defendants' costs of and incidental to defending the proceedings, in a form acceptable to the registrar as follows: (a) Within 28 days in the sum of $14,000. (b) Not less than 42 days prior to the hearing date appointed, in the further sum of $70,000. 4. Costs of the application are to be costs in the cause.
CATCHWORDS : Practice and Procedure – Security for costs – Company – Impecuniosity – Whether "reason to believe" inability to pay – Co-plaintiffs – Whether identity of issues on their claims – Cross claim against plaintiffs – Exercise of Court's discretion
Corporations Act 2001 (Cth), s 1335 LEGISLATION CITED : Trade Practices Act 1974 (Cth), ss 51A, 52 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
CATEGORY : Separate question
Ardern v Bank of New South Wales [1956] VLR 569 Beach Petroleum NL v Johnson (1992) 7 ACSR 203 Brewer v Westminster Bank Ltd [1952] 2 All ER 650 Catlin v Cyprus Finance Corporation (London) Ltd [1983] QB 759 Concrete Constructions Pty Ltd v Dalma Formwork Pty Ltd [1998] NSWSC 472; and [1999] NSWCA 16 Dalma Formwork Pty Limited v Concrete Constructions Group Limited [1998] NSWSC 472 FFE Minerals Australia Pty Limited v Mining Australia Pty Limited (2000) 156 FLR 116 Financial Industry Complaints Service Limited v Deakin Financial Services Pty Limited (2006) FCA 1805 Harpur v Ariadne Australia Limited (1984) 8 ACLR 835 CASES CITED : Hurworth Nominees Pty Ltd v ANZ Banking Group Ltd [2005] NSWSC 1360 Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2002] NSWSC 609 John Bishop (Caterers) Ltd v National Union Bank Limited (1973) 1 All ER 707 KDL Building Pty Ltd v Mount [2006] NSWSC Krambousanos v Jedda Investments Pty Ltd (1996) 64 FCR 348 Livingspring Pty Limited v Kliger Partners (2008) 66 ACSR 455 Maples v Hughes [2002] NSWSC 617. Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402 Street v Luna Park Sydney Pty Limited [2006] NSWSC 1317 Sydmar Pty Limited v Statewide Developments Pty Limited (1987) 11 ACLR 616
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