The Owners – Strata Plan No 69746 v IPM Pty Ltd; The Owners – Strata Plan No 71241 v IPM Pty Ltd [2015] NSWSC 772

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 69746 v IPM Pty Ltd; The Owners – Strata Plan No 71241 v IPM Pty Ltd [2015] NSWSC 772 Hearing dates: 3 June 2015 Decision date: 18 June 2015 Jurisdiction: Equity Division - Technology and Construction List Before: Ball J Decision: 1. In each proceeding, the cross claimant provide security for the costs of the cross defendant in the sum of $300,000. 2. The security be provided in each proceeding in the following tranches: (a) $100,000 no later than 21 days after the date of this order; (b) $100,000 no later than 21 days after the date on which the proceeding is set down for hearing or an order is made referring the issues raised by the Technology and Construction List Third Cross-Claim Statement (or any amendment thereof) to a referee for enquiry and report; (c) $100,000 no later than 21 days before the date on which the hearing before the court or a referee is scheduled to commence. 3. If security is not provided in accordance with orders (1) and (2), the proceedings be stayed. 4. The cross claimant pay the cross defendant's costs of the motions filed on 3 December 2014. 5. Liberty to apply to vary these orders on 7 days' notice. Catchwords: PRACTICE AND PROCEDURE – Costs – Security for costs – Whether reason to believe that corporation will be unable to pay its costs – Whether exercise of discretion requires consideration of the prospects of success or failure of a party's action – Whether cross claim against third party is defensive in nature – Quantum of security Legislation Cited: Corporations Act 2001 (Cth) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Beach Petroleum NL v Johnson (1992) 7 ACSR 203 Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd [2008] NSWSC 1399 Jazabas Pty Ltd v Haddad [2007] NSWCA 291 KDL Building Pty Limited v Mount (2006) NSWSC 474 Stanley-Hill v Kool [1982] 1 NSWLR 460 Walsh v Permanent Trustee Australia Limited (Supreme Court (NSW), 16 November 1995, BC9501639, unreported) Winnote Pty Ltd (in liq) v Page [2005] NSWCA 362; (2005) 64 NSWLR 244 Texts Cited: G E Dal Pont, Law of Costs (3rd ed, 2013, LexisNexis Butterworths) Category: Procedural and other rulings Parties: The Owners Strata Plan SP 69746 (Plaintiff in 2013/354979) The Owners Strata Plan SP 71241 (Plaintiff in 2013/354860) IPM Pty Limited (ACN 001 725 248) (Defendant/ Cross Claimant) Aquatherm Australia Pty Ltd (Cross Defendant) Representation: Counsel: J Drummond (Cross Claimant/Defendant) F Assaf (Cross Defendant)