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Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd

Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd

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Case Copied 18 December 2008 20 min read

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CITATION: Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd [2008] NSWSC 1399

HEARING DATE(S): 18 December 2008

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 18 December 2008

DECISION: Notice of Motion dismissed.

CATCHWORDS: PROCEDURE – costs – security for costs – application by plaintiff for security for costs of defendant’s cross-claim – standing of plaintiff to claim security under (CTH) Corporations Act 2001, s 1335 and/or (NSW) Uniform Civil Procedure Rules, r 42.41 – whether cross-claimant is in substance a plaintiff in the proceedings – whether corporate impecuniosity established – discretionary considerations

LEGISLATION CITED: (CTH) Corporations Act 2001, s 1335(1)
(NSW) Uniform Civil Procedure Rules 2005 Pt 42, r 42.21(d)

CATEGORY: Procedural and other rulings

CASES CITED: Beach Petroleum NL v Johnson (1992) 7 ACSR 203
Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301
KDL Building Pty Ltd v Mount [2006] NSWSC 474
Macgregor v Shaw (1848) 2 De G & Sm 360
Mapleson v Masini (1879) 5 QBD 144
Neck v Taylor [1893] 1 QB 560
New Fenix Compagnie Anonyme d'Assurances de Madrid v General Accident Fire & Life Assurance Corporation Ltd [1911] 2 KB 619
Specialised Building Materials Pty Limited v E U Occusted Pty Ltd (1981) 58 FLR 270
Sykes v Sacerdoti (1885) 15 QBD 423
Washoe Mining Company v Ferguson (1866) LR 2 Eq 371
Winnote Pty Ltd (in liq) v Page [2005] NSWCA 362; (2005) 56 ACSR 35

PARTIES: Bevwizz Group Pty Ltd (plaintiff/cross-defendant)
Transport Solutions Pty Ltd (defendant/cross-claimant)

FILE NUMBER(S): SC 4515/08

COUNSEL: Mr B Kremer (plaintiff/cross-defendant)
Ms M Castle (defendant/cross-claimant)

SOLICITORS: Horton Rhodes (plaintiff/cross-defendant)
Harris Sushames Lawyers (defendant/cross-claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday 18 December 2008

4515/08 Bevwizz Group Pty Ltd v Transport Solutions Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: By Notice of Motion filed on 26 November 2008 the plaintiff, Bevwizz Group Pty Limited, claims an order that the defendant/cross-claimant, Transport Solutions Pty Ltd, give security for the costs of the plaintiff/cross-defendant on the cross-summons, in the sum of $50,078.52 or such lesser sum as the Court considers appropriate, and that the proceedings on the cross-claim be stayed pending the provision of such security.

2 The substantive proceeding was instituted by summons filed on 2 September 2008, in which Bevwizz claims the following:

Warehousemen’s Liens Act

2. An order that the Defendant by itself, its servants and agents be restrained from selling the equipment set out in Schedule A (“the Equipment”).

3. An order that the Defendant release the Equipment to the Plaintiff.

4. In the alternative to 3, an order that the Defendant deliver up the Equipment to the Plaintiff.

5. A declaration that of the amount of $37,336.09 claimed by the Defendant against the Plaintiff under the agreement dated 1 April 2008…

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: [2008] NSWSC 1399
Decision Date: 18 December 2008

CaseChat Overview and Summary

Bevwizz Group Pty Ltd, the plaintiff, brought an action against Transport Solutions Pty Ltd, the defendant, over an alleged breach of contract. The defendant subsequently filed a cross-claim against the plaintiff. The plaintiff then applied for security for the costs of the defendant's cross-claim under sections 1335 of the Corporations Act 2001 and rule 42.41 of the Uniform Civil Procedure Rules. The court had to determine whether the plaintiff was eligible to seek security for costs under these provisions and if the defendant was, in essence, a plaintiff in the proceedings. Additionally, the court needed to assess if the defendant's financial hardship was established and consider other discretionary factors.

The court considered the legislative intent behind the security for costs provisions and examined the nature of the defendant's cross-claim. It concluded that the cross-claim was not in substance a plaintiff in the proceedings because it was a defensive measure rather than an independent claim. Consequently, the plaintiff did not have standing to claim security for costs under the relevant legislation. Furthermore, the court found that the defendant had not established corporate impecuniosity, and the discretionary considerations did not favour the plaintiff.

The court dismissed the plaintiff's application for security for costs of the defendant's cross-claim. The court found that the plaintiff did not have standing to claim security for costs, and the defendant had not demonstrated financial hardship. The court also considered the nature of the cross-claim and the legislative intent behind the security for costs provisions.

The court ordered that the plaintiff pay the defendant's costs of the application for security for costs, to be taxed if not agreed.

Orders