Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 2) [2018] NSWCA 329

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 2) [2018] NSWCA 329 Hearing dates: 13 December 2018 Decision date: 13 December 2018 Before: Basten JA Decision: (1) Subject to order 2, the appeal against the first and second respondents shall be dismissed on 29 January 2019.

(2) Order 1 shall not take effect if on or before 29 January 2019 the appellant has lodged with the registrar of the Court the sum of $85,000 or a bank guarantee in that amount by way of security for the costs of the first and second respondents to the appeal.

(3) The appellant shall pay the costs of today's proceedings with respect to security for costs, such costs to be payable forthwith. Catchwords: CIVIL PROCEDURE – appeal – security for costs – security for costs by way of caveatable interest over property owned by third party – property subject of testamentary trust – whether property acceptable as security – further opportunity to provide acceptable security

CIVIL PROCEDURE – variation of interlocutory order – exercise of liberty to apply – whether notice of motion required – whether respondents knew of nature of owner's interest in property when order for security made – whether variation warranted Legislation Cited: Real Property Act 1900 (NSW), s 82 Trustee Act 1925 (NSW), s 38 Cases Cited: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWCA 271 EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 [2018] NSWCA 288 Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 Category: Procedural and other rulings Parties: Comlin Holdings Pty Ltd (Applicant) Metlej Developments Pty Ltd (First Respondent) Nova Scotia Developments Pty Ltd (Second Respondent) Kayrouz Constructions Pty Ltd (Third Respondent) L.A.D.S. Developments Pty Ltd (Fourth Respondent) Representation: Counsel: Mr P King (Applicant) Mr L Gor (First and Second Respondents) Mr A d'Arville (Third and Fourth Respondents)