Vintage Marine Art Pty Ltd v Henderson & Cremer (No 2) [2019] NSWCA 252

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Vintage Marine Art Pty Ltd v Henderson & Cremer (No 2) [2019] NSWCA 252 Hearing dates: 19 September 2019 Date of orders: 19 September 2019 Decision date: 19 September 2019 Before: Bell P at [29] Macfarlan JA at [30] Brereton JA at [2] Decision: (1) Insofar as it is required, time to file the Summons for Leave to Appeal be extended up to and including the date on which it was filed.

(2) Leave to appeal be granted, and the applicant file a Notice of Appeal within seven days.

(3) The appeal be allowed and the orders of Rothman J made on 14 November 2018 be set aside, and in lieu thereof, upon the undertaking of Gina Edwards to the Court that she will be personally answerable for any costs order made against the Plaintiff in the proceedings below, order that claim 3 in the Defendant's Notice of Motion filed on 1 June 2018 be dismissed with costs.

(4) Order that the respondents pay the applicant's costs of the appeal. Catchwords: COSTS – security for costs – where security order already made – where increase ordered three years after original order – where personal undertaking made to pay costs Legislation Cited: Corporations Act 2001 (NSW) s 1335 Cases Cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Erolen Pty Ltd v Baulkham Hills Shire Council (1993) 10 ACSR 441 Gentry Brothers Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405 Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523 Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306 Jazabas v Haddad (2007) 65 ACSR 276; [2007] NSWCA 291 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Newtimber (Operations) Pty Ltd v Tarong Energy Corporation Ltd [2011] FCA 123 Pearson v Naydler [1977] 3 All ER 531 Prynew Pty Ltd v Nemeth [2010] NSWCA 94 Rawson Contractors Pty Ltd v Krogh & Company Pty Ltd (Supreme Court (Qld), Ambrose J, 11 September 1986, unreported) Southern Cross Exploration NL v Fire & All Risks Insurance Company Ltd (1985) 1 NSWLR 114 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 1144 Sykes v Sykes (1869) LR 4 CP 645 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 Texts Cited: Jim Delany, Security for Costs (1989, Law Book Co Ltd) Category: Principal judgment Parties: Vintage Marine Art Pty Ltd (Applicant) Robert Henderson (First Respondent) Douglas Cremer (Second Respondent) Representation: Counsel: Gina Edwards (Director of Applicant, by leave) C Alexander (Respondents)