Chan v Kai Design & Construction Pty Ltd

Case [2014] ACTSC 86


CHAN v KAI DESIGN & CONSTRUCTION PTY LTD

[2014] ACTSC 86 (5 May 2014)

PROCEDURE – costs – security for costs – where the plaintiffs applied for security for costs as the respondents in an arbitration under the Commercial Arbitration Act 1986 – the Court has power under s 47 of the Commercial Arbitration Act 1986 to grant security for costs in arbitrations – whether the defendant who was the applicant in the arbitrations was an impecunious corporation – application for security for costs granted.

Arbitration Act 1902 (NSW)
Commercial Arbitration Act 1984 (NSW) s 47
Commercial Arbitration Act 1986 (ACT) s 47
Corporations Act 2001 (Cth) s 1335

Court Procedure Rules 2006 (ACT) s 1900, 1902

Chan v Wood [2013] ACTSC 228
Cleary Bros (Parramatta) Pty Limited v Commonwealth Bank of Australia (No 3) (2011) ACTSC 139
FPM Construction Pty Limited v ABB Service v Pyrmont Light Rail [2006] NSWSC 187
Holman v Dynabuild Pty Ltd (1975) 2 NSWLR 334
Imperial Leatherware Co Pty Ltd v Macri & Marcellino Pty Ltd (1991) 22 NSWLR 653
Johnson v Macri & Marcellino Pty Limited (unreported, Supreme Court of New South Wales, 8 June 1990, Cole J)
Mowbray College v Exhib Design & Construction Pty Ltd (in liq) (1986) 5 ACLC 478
Nasic v Dimovski [1988] VR 94

Wollongong City Council (2004) NSWCA 418

EX TEMPORE

SC 101 of 2014

Judge:             Master Mossop
Supreme Court of the ACT

Date:              5 May 2014

IN THE SUPREME COURT OF THE     )
  )          No.  SC 101 of 2014
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:LING CHAN

First Plaintiff

WAI MAN MI

Second Plaintiff

AND:KAI DESIGN AND CONSTRUCTION PTY LTD

Defendant

ORDER

Judge:  Master Mossop
Date:  5 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

  1. Within 21 days, the defendant is to provide security for costs in the sum of $80,000.

  1. The security shall be provided by payment into a joint account in the name of the plaintiffs’ and defendant’s solicitors or by unconditional bank guarantee payable on demand made by the plaintiffs’ solicitors or in a form agreed to by the plaintiffs within seven days of the date of this order.

  1. The application in proceedings dated 31 March 2014 is dismissed.

  1. The defendant pay the plaintiffs’ costs of the originating application dated 13 March 2014 except that there be no order as to costs of the application in proceedings dated 31 March 2014. 

  1. If the security required by order 1 is not provided, the arbitration proceedings IAMA 5073 and 5074 are stayed until that security is provided. 

Introduction

  1. This is an unfortunate case in that it involves two arbitrations relating to construction contracts for two single residential dwellings.  A different aspect of the case has previously been subject of a decision of this Court: see Chan v Wood [2013] ACTSC 228. While the amount at stake in the arbitration proceedings is significant for the parties and significant in terms of the quantum of the original building contracts, the amount at stake are not such…

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AGLC
Chan v Kai Design & Construction Pty Ltd [2014] ACTSC 86
Case
[2014] ACTSC 86
Decision Date

CaseChat Overview and Summary

The plaintiffs, Chan, filed an originating application in the Supreme Court of New South Wales seeking security for costs as the defendants in arbitration proceedings under the Commercial Arbitration Act 1986. The defendants, Kai Design & Construction Pty Ltd, opposed the application. The plaintiffs applied for security for costs as the defendants in the arbitration, which was opposed by the defendants who argued they were an impecunious corporation. The court was required to determine whether the defendants were an impecunious corporation and if so, whether the plaintiffs were entitled to security for costs.

The court considered the statutory provisions of the Commercial Arbitration Act 1986, which provides for the grant of security for costs in arbitrations. The court found that the defendants were not an impecunious corporation, and therefore, the plaintiffs were entitled to security for costs. The court considered the financial position of the defendants and found that they had sufficient assets to meet the security for costs. The court also considered the public interest in the enforcement of security for costs provisions in arbitration proceedings.

The court granted the plaintiffs' application for security for costs in the sum of $80,000. The security was to be provided by payment into a joint account in the name of the plaintiffs' and defendants' solicitors or by unconditional bank guarantee payable on demand made by the plaintiffs' solicitors or in a form agreed to by the plaintiffs within seven days of the date of the order. The application in proceedings dated 31 March 2014 was dismissed. The defendants were ordered to pay the plaintiffs' costs of the originating application dated 13 March 2014 except that there be no order as to costs of the application in proceedings dated 31 March 2014. If the security required by order 1 was not provided, the arbitration proceedings IAMA 5073 and 5074 were to be stayed until that security was provided.

Orders

Orders of the court

1. Within 21 days, the defendant is to provide security for costs in the sum of $80,000.

2. The security shall be provided by payment into a joint account in the name of the plaintiffs’ and defendant’s solicitors or by unconditional bank guarantee payable on demand made by the plaintiffs’ solicitors or in a form agreed to by the plaintiffs within seven days of the date of this order.

3. The application in proceedings dated 31 March 2014 is dismissed.

4. The defendant pay the plaintiffs’ costs of the originating application dated 13 March 2014 except that there be no order as to costs of the application in proceedings dated 31 March 2014.

5. If the security required by order 1 is not provided, the arbitration proceedings IAMA 5073 and 5074 are stayed until that security is provided.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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