W & D Pty Ltd v Chandra [2012] NSWCA 116

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: W & D Pty Ltd v Chandra [2012] NSWCA 116 Hearing dates: 23 April 2012 Decision date: 23 April 2012 Before: McColl JA Decision: 1. Dismiss the appeal. 2. Respondent to the notice of motion (appellant) to pay the costs seeking the dismissal order. 3. Respondent to the notice of motion (appellant) to pay the applicants' (respondents') costs of the appeal. [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 - dismissal for want of provision of security for costs - no question of principle Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: W & D Pty Ltd - appellant David Loekman - first respondent Dolly Chandra - second respondent Representation: Takchi & Associates - appellant (no appearance) Accentro Legal - respondents File Number(s): 2009/338513 Publication restriction: No Decision under appeal Date of Decision: 2011-08-19 00:00:00 Before: Balla J File Number(s): 2009/338513

Judgment 1McCOLL JA: By notice of motion dated 13 April 2012 Mr David Loekman and Ms Dooly Chandra move the Court for an order that the appeal brought by W & D Pty Ltd against a decision of Balla J in the District Court of New South Wales be dismissed for failure to provide security for costs. 2The applicants sought an order for security for costs by notice of motion which was returnable before Young JA on 5 March 2012. On that date it appears the motion was resolved by consent orders requiring the appellant to provide security for the costs of the appeal in the sum of $32,500 by way of unconditional bank guarantee within twenty eight days, that the appeal be stayed until such security was provided and that the appellant pay the respondent's costs of the notice of motion. His Honour also endorsed those short minutes of order by adding a "liberty to apply" provision. 3According to the affidavit of Mr Lin sworn on 12 April 2012, the applicants had not received the relevant security for costs from the appellant. On 3 April Mr Lin wrote to the Registry referring to Young JA's orders and asking for the matter to be relisted because of the failure to provide the security for costs or evidence of any provision of relevant security for costs by 2 April 2012. The Registrar advised Mr Lin that his application should be made by notice of motion. 4On 4 April 2012 Mr Lin sent an email to Messrs Takchi & Associates who he informs me are the solicitors on the record for the respondent to the notice of motion (the appellant in the proceedings). He forwarded the Registrar's email letter to them and asked that the firm provide evidence that their clients had provided the security for costs pursuant to Justice Young's orders of 5 March 2012. The email also asked that if the security for costs had not been provided, whether that firm's clients consented to the matter being restored to the list, the appellant's appeal being dismissed and the appellant paying the respondent's costs to be agreed or assessed. The email also put the recipients on notice that if a reply was not received by 5.00pm on the date of the email, an application would be made by filing a notice of motion seeking an order for the appeal to be dismissed and a costs order including on an indemnity basis of the whole appeal proceedings and for the motion. 5As at the date of swearing his affidavit on 12 April 2012 Mr Lin had not received the relevant security for costs nor a reply from the appellant or their solicitors to that email of 4 April. By letter dated 20 April 2012 and marked "exhibit A" in the motion, Messrs Takchi & Associates advised that they have not been able to obtain any further instructions from their client and that they no longer held instructions to act on the client's behalf but that the notice of motion had been forwarded to their client for their urgent attention. I note that the matter appears in the Court list today as listed before the Registrar. 6The notice of appeal in the proceedings was filed on 18 November 2011. A Red Book was prepared and filed on 15 February 2012. It appears that the matter was listed before the Court on 20 February 2012 on which occasion it was stood over to 5 March 2012 apparently on the basis that the respondents to the appeal, the applicants on the notice of motion, were to file the notice of motion seeking security for costs pursuant to which Young JA made his order. 7Although the appeal is comparatively young or recent in the scheme of things, having regard to the fact that the respondents' solicitors have forwarded the notice of motion to the respondents and there has been no appearance in the Court today nor has there been any provision of the security for costs ordered on 5 March 2012, I consider it is appropriate to dismiss the appeal pursuant to Uniform Civil Procedure Rule 2005 42.21(3). 8Mr Lin has submitted that it is appropriate to order indemnity costs of the appeal, because the appeal turns on issues of fact. I do not see anything in the matters Mr Lin has put to me which would warrant granting an order that the costs of the appeal be on an indemnity basis. 9I make the following orders: 1 Dismiss the appeal. 2 Respondent to the notice of motion (appellant) to pay the costs seeking the dismissal order. 3 Respondent to the notice of motion (appellant) to pay the applicants' (respondents') costs of the appeal.