Galati v Deans [2018] NSWSC 1600

Supreme Court New South Wales

Medium Neutral Citation: Galati v Deans [2018] NSWSC 1600 Hearing dates: 16 October 2018 Date of orders: 24 October 2018 Decision date: 24 October 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Subject to the filing in Court within 7 days of signed undertakings by each of the first cross-claimant and his wife, Ms Sharon Louise Deans, in the form annexed to the affidavit affirmed 9 October 2018 of Matthew Nicholas Robinson but with the additional undertaking articulated by Senior Counsel for the cross-claimants in the course of the hearing of the tenth cross-defendant's application for security for costs (and without prejudice to the ability of the tenth cross-defendant at a later stage to make any further application pursuant to rule 42.21(1) of the Uniform Civil Procedure Rules (NSW) and/or s 1335(1) of the Corporations Act 2001 (Cth) for security to be provided by the second cross-claimant, Fishbank Development Corporation Pty Limited), (a) dismiss the tenth cross-defendant's present application for security for costs; and (b) order that the costs of the tenth cross-defendant's application for security for costs be costs in the cause. Catchwords: CIVIL PROCEDURE – Application for security for costs – Relevant considerations – Where cross-claimant corporation admitted it would be unable to pay costs of cross-defendant but undertakings provided by two individuals to be responsible for costs of cross-defendant – Held not an appropriate case for the exercise of the discretion to order security – Application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), s 3 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 20, 30 Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW), r 42.21 Cases Cited: Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 Epping Plaza Fresh Fruit and Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191; [1999] VSCA 43 Idoport Pty Ltd v National Australia Bank Limited [2002] NSWCA 271 In the matter of Australian Style Holdings Pty Ltd as trustee of The Australian Style Investments Unit Trust [2018] NSWSC 1368 In the Matter of Felan's Fisheries Pty Limited [2016] NSWSC 1351 Jazabas Pty Ltd v Haddad [2007] NSWCA 291; 65 ACSR 276 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Live Board Holdings Ltd v Cody Live Pty Limited [2017] NSWCA 302 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93 Mahesan v Malaysia Government Officers' Co-operative Housing Society Ltd [1979] AC 374 Porter v Gordian Runoff Limited [2004] NSWCA 171 Prynew Pty Limited v Nemeth [2010] NSWCA 94 Tyneside Property Management Pty Limited v Hammersmith Management Pty Ltd [2013] NSWCA 404 Westpac Banking Corporation v Southern Environmental Services Pty Ltd [2017] NSWSC 626 Winnote Pty Ltd (in liq) v Page (2005) 64 NSWLR 244; [2005] NSWCA 362 Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245 Category: Procedural and other rulings Parties: Robert Paton Deans (First Defendant/First Cross-Claimant) Fishbank Development Corporation Pty Limited (Second Defendant/Second Cross-Claimant) EJC Pyrmont Pty Ltd (Tenth Cross-Defendant) Representation: Counsel: C Withers (Tenth Cross-Defendant/Applicant on motion) M Einfeld SC with P Barham (Cross-Claimants/Respondents on motion)