Macarthur Projects Pty Ltd v Cottage Developers Pty Ltd [2019] NSWSC 1149

Supreme Court New South Wales

Medium Neutral Citation: Macarthur Projects Pty Ltd v Cottage Developers Pty Ltd [2019] NSWSC 1149 Hearing dates: 28 August 2019; 2 September 2019 Date of orders: 03 September 2019 Decision date: 03 September 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order the plaintiff to provide security for the defendants' costs in the following tranches: (a) the sum of $75,000 within seven days; (b) the sum of $75,000 within 28 days of directions being made specifying the timetable for the filing of evidence; and (c) the sum of $100,000 within 42 days of the matter being set down for hearing. 2. Order that security be provided by payment into Court or by unconditional bank guarantee in a form acceptable to the defendants or, in the event of dispute, acceptable to the Court. 3. Order that the proceedings be stayed in the event of failure by the plaintiff to make any of the payments for security provided for under Order 1 (or the payment provided for under Order 4) within the time specified. 4. Order that the plaintiff provide security in the sum of $130,000 (in accordance with Order 2 above) for the costs incurred in proceedings 2018/00152494 in this Court (which costs are the subject of costs orders made by Parker J in those proceedings and of an application for costs assessment lodged by the first defendant on 15 August 2019); and order that the defendants be entitled to draw down on so much of that security as necessary to satisfy any judgment obtained as a result of the costs assessment process. 5. Note that the orders made for the provision of security (Orders 1 and 4 above) are without prejudice to the defendants making any further application for security for the costs of these proceedings or the costs incurred in the previous proceedings, in the event that the security so ordered is insufficient to secure the costs actually incurred in the present proceedings (or the subject of the final costs assessment in the 2018 proceedings). 6. Order that the costs of the defendants' notice of motion filed 29 July 2019 be costs in the cause. 7. Transfer the proceedings to the Technology and Construction List. Catchwords: CIVIL PROCEDURE— Summary disposal — Dismissal of proceedings — Abuse of process – application for dismissal of proceedings or the striking out of the statement of claim or orders in respect of costs incurred in earlier proceedings – whether an abuse of process to bring fresh proceedings in circumstances where the first proceedings were dismissed for their failure to provide security for costs Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59, 67, 91 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(c), 14.28(1), 36.16 Victorian Supreme Court Rules (2015), r 60.03(3)(a) Cases Cited: Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700 at Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Batistatos v Roads and Traffic Authority (NSW) 226 CLR 256; [2006] HCA 27 Cannuli v Cannuli [2018] NSWSC 937 Hamod v State of New South Wales [2011] NSWCA 375 Johnson v Gore Wood & Co [2002] 2 AC 1 Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 UBS AG v Tyne [2018] HCA 45; (2018) ALJR 968 Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 Category: Procedural and other rulings Parties: Macarthur Projects Pty Ltd (Plaintiff) Cottage Developers Pty Ltd (First Defendant) John James Cowin (Second Defendant) Representation: Counsel: Mr MR Pesman SC (Plaintiff) Mr TD Castle (Defendants)