SX Projects Pty Ltd (in liquidation) and Anor v V Battaglia and Ors [2016] NSWSC 1385

Supreme Court New South Wales

Medium Neutral Citation: SX Projects Pty Ltd (in liquidation) and Anor v V Battaglia and Ors [2016] NSWSC 1385 Hearing dates: 7 September 2016 Decision date: 07 September 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court orders that the application for security for costs be dismissed. The Defendants pay the Plaintiffs' costs of the application. Catchwords: Practice and procedure — Security for costs — Application for security for costs – where proceedings brought against defendants by company and liquidator of company – where company's claim against defendants was distinct from the liquidator's claim although the claims shared a substantially common factual basis – where defendants sought security for costs against the company – whether jurisdiction under s 1335 of the Corporations Act 2001 (Cth) or r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) established – whether security for costs should not be ordered in circumstances where there is a natural person plaintiff and corporate plaintiff in the proceedings – whether security for costs should not be ordered in circumstances that defending the company's claim is likely to add little additional cost to the defendants beyond that which would be incurred in meeting liquidator's claim – whether defendants' conduct was causative of company's impecuniosity – whether an order for security for costs would stultify the proceedings. Legislation Cited: - Corporations Act 2001 (Cth), s 1335 - Uniform Civil Procedure Rules 2005 (NSW), r 42.21 Cases Cited: - Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 4; 52 ALR 176 - BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 - Dalma Formwork Pty Ltd (admin appt) v Concrete Constructions Group Ltd [1998] NSWSC 472 - Funds First Pty Ltd v Owners Corporation Strata Plan 66609 (No 2) [2008] NSWSC 428 - Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2014] NSWCA 224 - Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 - Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2002] NSWSC 609 - Jazabas Pty Ltd v Haddad [2007] NSWCA 291; (2007) 65 ACSR 276 - Maples v Hughes [2002] NSWSC 617 Narradine Pty Ltd v Mascot Steel and Tools Pty Ltd [2012] NSWSC 385 - Polstead Pty Ltd (in liq) v Shah [2009] NSWSC 560 - Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 Category: Procedural and other rulings Parties: SX Projects Pty Ltd (in liquidation) (First Plaintiff) Geoffrey Reidy in his capacity as liquidator of SX Projects Pty Ltd (in liquidation) (Second Plaintiff) Vince Battaglia (First Defendant) Fellmane Pty Ltd (Second Defendant) Bianca (NSW) Pty Ltd (Third Defendant) Contact Constructions Pty Ltd (Fourth Defendant) Karen Battaglia (Fifth Defendant) Representation: Counsel: D J Cook (Plaintiffs) M Painter SC/T L Bagley (Defendants)