Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302 Hearing dates: 17 October 2016 Decision date: 04 November 2016 Before: Beazley ACJ Decision: (1) The appellant, Treloar Constructions Pty Limited, provide security for the costs of the respondent, Brian McMillan, of the appeal in a sum of $75,000, such sum to be paid into court or by way of an irrevocable bank guarantee issued by an Australian bank and realisable on an order of the Court;

(2) The proceedings be stayed until such time as the appellant has provided security for costs in accordance with order (1);

(3) Upon the appellant paying $225,000 into a joint controlled monies account in the names of both solicitors on the record on this appeal, the execution and enforcement, including by way of a costs assessment, of the order made on 17 March that:

(a) the appellant, Treloar Constructions Pty Limited, pay the respondent, Brian McMillan's costs: (i) on an ordinary basis up to and including 5 December 2015; and (ii) on an indemnity basis thereafter, as and from 6 December 2015

is stayed until 7 days after judgment is given on the appeal or until further order of the Court. Catchwords: PRACTICE AND PROCEDURE – costs – security for costs – application for security for costs pursuant to s 1335(1) of the Corporations Act 2001 (Cth) – security sought against appellant company – existence of credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the appeal – where company owns no property – where company has low share capital – where no financial records in evidence – security for costs ordered