A-Link Technology Pty Ltd v Cumberland Council - [2020] NSWSC 1845

Supreme Court

New South Wales

Medium Neutral Citation: A-Link Technology Pty Ltd v Cumberland Council [2020] NSWSC 1845
Hearing dates: 9 December 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Jurisdiction: Equity - Real Property List
Before: Rein J
Decision:
See [40]-[42], [48]-[49]

Catchwords:
COSTS – Security for costs – Relevant factors – Two plaintiff companies brought a claim against Cumberland Council and a former councillor, relating to a 2013 construction contract which the Council rescinded – The defendants filed notices of motion seeking security for costs – The plaintiffs did not appear at the hearing of the motions and did not make submissions – Where the plaintiffs are impecunious and where there is no evidence as to the financial position of the director of the plaintiffs – Where the plaintiffs, in their conduct of the litigation, had not complied with orders or notices to produce – Where a substantially similar case brought by the second plaintiff against the Council in 2016 had been dismissed for failure to meet discovery obligations – Held: the plaintiffs to provide security for costs for both defendants and proceedings stayed until security provided.
CIVIL PROCEDURE – Commencement of proceedings – Proceedings carried on by corporation – Necessity for solicitor to act or for director to be joined as a plaintiff – The plaintiff companies instituted the proceedings without being represented by a solicitor and their director was not joined as a plaintiff in contravention of UCPR r 7.1 – Held: proceedings stayed until the plaintiffs appoint a solicitor or join their director as a plaintiff.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1; (1984) 52 ALR 176
Mehajer and Australian Securities and Investments Commission [2016] AATA 621
R v Salim Mehajer [2018] NSWLC 11
Sydney Constructions & Developments Pty Ltd v Cumberland Council [2018] NSWSC 304
The Owners - Strata Plan 87265 v Saaib [2019] NSWSC 289

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: A-Link Technology Pty Ltd (First Plaintiff)
Sydney Constructions & Developments Pty Ltd (Second Plaintiff)
Cumberland Council (First Defendant)
Ronney Oueik (Second Defendant)
Representation:
Counsel:
Mr M. Sheldon (First Defendant)
Mr C. D. Wood SC (Second Defendant)
Solicitors:
Storey & Gough Lawyers (First Defendant)
Paramonte Legal (Second Defendant)

File Number(s): 2020/269447
Publication restriction: Nil

Judgment

These proceedings relate to a dispute concerning a contract for sale of land at 13 John Street, Lidcombe (“the Property”). The Property is owned by the First Defendant, Cumberland Council (“the Council”).
The First Plaintiff is A-Link Technology Pty Ltd (“A-Link”). The Second Plaintiff is Sydney Constructions & Developments Pty Ltd (“SCD”). The sole director of both companies is Yasser Nasser: see pages 4 and 19 of Exhibit PW-1 to the Affidavit of Patrick Joseph Wiggins of 24 November 2020, a Special Counsel at Paramonte Legal who has carriage of these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1845
Decision Date: 11 December 2020

CaseChat Overview and Summary

The plaintiffs, A-Link Technology Pty Ltd and A-Link Pty Ltd, initiated legal proceedings against Cumberland Council and a former councillor, alleging issues arising from a rescinded 2013 construction contract. The defendants applied for security for costs and the plaintiffs failed to appear or make submissions at the hearing. The plaintiffs are financially disadvantaged, and there is no evidence of the financial position of the director of the plaintiffs. Additionally, the plaintiffs have not complied with orders or notices to produce documents in this litigation, and a similar case brought by the second plaintiff against the Council in 2016 was dismissed for failure to meet discovery obligations.

The court considered the relevant factors for granting security for costs, including the financial position of the plaintiffs and their compliance with court orders. The court found that the plaintiffs should provide security for costs for both defendants and ordered the proceedings to be stayed until the security is provided. Furthermore, the court addressed the issue of the plaintiffs instituting the proceedings without a solicitor and without joining their director as a plaintiff, in contravention of UCPR rule 7.1. The court held that the proceedings must be stayed until the plaintiffs either appoint a solicitor or join their director as a plaintiff.

In conclusion, the court granted the defendants' application for security for costs and stayed the proceedings until the plaintiffs provide the security. The court also ordered the plaintiffs to either appoint a solicitor or join their director as a plaintiff in compliance with UCPR rule 7.1. The court's decision emphasises the importance of financial responsibility and compliance with court orders in litigation, as well as the necessity of proper representation for corporations initiating legal proceedings.

Orders