Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211 Hearing dates: 18 July 2011 Decision date: 18 July 2011 Before: McColl JA Decision: (1) Upon the respondent undertaking to the Court that: (a) it will apply the funds so received to pay the costs incurred by it in the appeal and any interest on those costs; and (b) it will repay the moneys to the extent it is determined on an assessment that Equititrust has been overpaid its costs of the appeal, having regard to the order for costs made on 16 June 2011 and its contractual entitlements. Order that the Registrar of the Supreme Court of New South Wales pay to the respondent $50,000, being the money held as security for costs pursuant to order 3 of Allsop P dated 7 February 2011. (2) Order that the order for costs made by the Court of Appeal on 16 June 2011 take effect today. (3) Direct the Registrar to pay the sum of $698,000 received from Abacus Group Holdings Limited to Equititrust Limited CAN 061 383 944. (4) Order the appellants to pay the respondent's costs of the motion on an indemnity basis. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - security for costs - discharge of security - whether security may be discharged before costs assessed - Uniform Civil Procedure Rules 2005 36.4 Legislation Cited: Income Tax Assessment Act 1936 (Cth) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Supreme Court Act 1935 (SA) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Andrew Garret Wine Resorts Pty Limited & Anor v National Australia Bank Ltd [2005] SASC 455; (2005) 227 ALR 113. Buzzle Operations Pty Ltd (In Liquidation) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490 Duncan (as trustee for the bankrupt Estate of Garrett) v National Australia Bank [2006] SASC 239; (2006) 95 SASR 208 Dwight v Commissioner of Taxation (1992) 37 FCR 178 Illawong Village Pty Limited v State Bank of New South Wales [2005] NSWSC 524 Summer Hill Business Estate Pty Ltd v Equititrust Limited [2011] NSWCA 192 Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 149. Summer Hill Estate Pty Ltd v Equititrust Ltd [2010] NSWSC 776 Category: Procedural and other rulings Parties: Equititrust Ltd - Applicant on the motion Summer Hill Business Estate Pty Ltd - Respondent on the motion Representation: J Hogan-Doran - for the applicant on the motion (respondent on the appeal) MJ Dawson - for the respondents on the motion (appellants on the appeal) Tucker & Cowan - for the applicant on the motion (respondent on the appeal) Blackstone Waterhouse - for the respondents on the motion (appellants on the appeal) File Number(s): 2010/283982 Publication restriction: No Decision under appeal Citation: Summer Hill Business Estate Pty Ltd v Equititrust Limited [2010] NSWSC 776 Date of Decision: 2010-07-30 00:00:00 Before: Pembroke J File Number(s): SC 2010/6725