Cody v Live Board Holdings Ltd [2015] NSWSC 1790

Supreme Court New South Wales

Medium Neutral Citation: Cody v Live Board Holdings Ltd [2015] NSWSC 1790 Hearing dates: 18, 19 November 2014 and 7,8 July 2015 Date of orders: 01 December 2015 Decision date: 01 December 2015 Jurisdiction: Equity Before: Robb J Decision: Refer to [174] Catchwords: PROCEDURE – cross claimants abandoned their amended cross claim and draft further amended cross claim – unsustainable pleadings – no cross claim remains on foot – remaining active cross claimant requires leave to file a new version of its further amended cross claim – application for leave unlikely to be successful if only remodelled version of abandoned defective pleading – if leave given to cross claimant, cross defendants' application for security for costs will be relevant

PROCEDURE – costs – security for costs – whether court should have regard to merits and genuineness of proceedings – court should assume the claim is bona fides and not conduct detailed consideration of merits – if cross claimant is granted leave, it will have shown reasonable cause of action – inadequate evidence that cross claimant's impecuniosity is attributable to cross defendants' conduct – the cross claimant's financial position shows inability to meet legal costs of the cross defendants irrespective of the latter parties' conduct – inadequate evidence to establish whether security for costs order would stultify proceedings – cross claimant should be ordered to provide security for costs if granted leave to file further pleading – cross defendants should address quantum after considering any new claims

PROCEDURE – costs – departing from the general rule – whether cross defendants' costs of proceedings should be payable by the cross claimant(s) forthwith – position taken by cross claimant(s) was unreasonable – if leave granted for the filing of new pleadings, proceedings likely to take a significant amount of time – order costs payable forthwith Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules NSW (2005) Cases Cited: Advance Innovative Solutions Pty Ltd (in liq) v X-Dem Group (Aust) Pty Ltd [2012] NSWSC 1112 Cody v Live Board Holdings Ltd [2014] NSWSC 78; (2014) 97 ACSR 606 Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1 Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 764 HP Mercantile Pty Ltd v Plevey [2014] NSWCA 374 Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276 Nonox Australia v Certain Underwriters at Lloyds Subscribing to Contract No CV0263CGL [2014] NSWSC 221 Northam v Favelle Favco Holdings Pty Ltd, unreported, 7 March 1995 BC9504276 Re Live Board Holdings Ltd (administrators appointed) [2014] NSWSC 161 Wollongong City Council v Legal Business Centre [2012] NSWCA 245 Category: Procedural and other rulings Parties: Live Board Holdings Ltd (cross claimant) Cody Live Pty Ltd ACN 168 364 403 (first cross defendant) Cody Investments Pty Ltd ACN 100 588 903 (second cross defendant) Brain Beyond Pty Ltd ACN 128 068 082 (third cross defendant) Pierce Patrick Cody (fourth cross defendant) Finola Anne Burke (fifth cross defendant) Richard Charles Ochojski (sixth cross defendant) Mark Reay (seventh cross defendant) Justin Holzman (eighth cross defendant) Manfred Holzman (ninth cross defendant) Representation: Counsel: P Menzies QC/G Preston (cross claimant) B Kremer (first, second, fourth, fifth, sixth cross defendants) D Weinberger (third, seventh cross defendants) J Shepard/V Cha (eighth, ninth cross defendants)