Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362

Supreme Court New South Wales

Medium Neutral Citation: Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362 Hearing dates: 28 March 2017 Date of orders: 28 March 2017 Decision date: 07 April 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Pursuant to rule 42.21(1) of the Uniform Civil Procedure Rules (NSW) and s 1335(1) of the Corporations Act 2001 (Cth), order the cross-claimant, Urban Ecological Systems Ltd, to provide security within 28 days for the cross-defendant's costs of and incidental to the cross-claim up to the completion of its evidence and commencement of the trial in the amount of $126,007.70, such security to be provided by way of an unconditional bank guarantee in a form acceptable to the cross-defendant. 2. In the event that the security ordered in order 1 above is not provided within the time specified, order that the proceedings on the cross-claim be stayed until further order. 3. Grant the cross-defendant liberty to apply on 3 days' notice for further security to be provided for the period from commencement of the hearing or to increase the amount of security ordered in order 1 or in the event that there is disagreement as to the acceptability of the unconditional bank guarantee provided pursuant to order 1. 4. Order the cross-claimant to pay the cross-defendant's costs of and incidental to this notice of motion. Catchwords: PRACTICE AND PROCEDURE – costs – security for costs – where security for costs of cross-claim sought from start-up company – whether cross-claimant is effectively in position of defendant – whether cross-claim raises issues separate from those raised in main proceedings – quantum of security – security ordered in tranches Legislation Cited: Australian Consumer Law, s 18 Civil Procedure Act 2005 (NSW), s 3(1) Corporations Act 2001 (Cth), s 1335Competition and Consumer Act 2010 (Cth), Sch 2 Fair Trading Act 1987 (NSW), s 68 Trade Practices Act 1974 (Cth), s 82 Uniform Civil Procedure Rules 2005 (NSW), rr 42.21(1), 42.21(1A) Cases Cited: Allstate Life Insurance v ANZ Banking Group Limited (1995) 134 ALR 187; [1995] FCA 1778 Bryan v Fencott and Associates Pty Ltd v Eretta Pty Ltd (1978) 16 FCR 497 Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 Cornelius v Global Medical Solutions Australia Pty Ltd; Farrag v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65 Estates Property Investment Corporate Limited v Pooley [1975] 3 ACLR 256 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87 Hurworth Nominees Pty Ltd v ANZ Banking Group [2005] NSWSC 1360 Idoport Pty Ltd v National Australia Bank Limited [2002] NSWCA 271 In the Matter of Felan's Fisheries Pty Limited [2016] NSWSC 1351 Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 John Arnold's Surf Shop (in liq) v Heller Factors Pty Ltd [1979] 22 SASR 20 KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] 56 FCR 189 Living Spring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93 Nick v Taylor [1893] 1 QB 560 Pacific Acceptance Corporation Limited v Forsyth (No 2) (1967) 85 WN Pt 1(NSW) 715 Porter v Gordian Runoff Limited [2004] NSWCA 171 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 Sydmar Pty Ltd v Statewise Developments Pty Ltd [1987] 11 ACLR 616 Tyneside Property Management Pty Limited v Hammersmith Management Pty Ltd [2013] NSWCA 404 Winnote Pty Ltd (in liq) v Page (2005) 64 NSWLR 244; [2005] NSWCA 362 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 Category: Procedural and other rulings Parties: Green Camel Pty Ltd ACN 143 929 560 (Applicant on Motion/Plaintiff/Cross-Defendant) Urban Ecological Systems Limited ACN 113 693 837 (Respondent on Motion/First Defendant/Cross-Claimant) Representation: Counsel: AC Harding (Applicant on Motion/Plaintiff/Cross-Defendant) B McEniery (Respondent on Motion/First Defendant/Cross-Claimant)