Clarence Street v ISIS Projects - [2007] NSWSC 380

CITATION: Clarence Street v ISIS Projects [2007] NSWSC 380

HEARING DATE(S): 26 March 2007

JUDGMENT DATE :
26 March 2007

JURISDICTION: Technology and Construction List

JUDGMENT OF: McDougall J at [1]

EX TEMPORE JUDGMENT DATE: 26 March 2007

DECISION: See para [50] of judgment

CATCHWORDS: COSTS - security for costs - whether security given earlier without prejudice to defendant's entitlement to seek further security - whether delay a bar to further security

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999.

CASES CITED: Bryan E Fencott & Associates Pty Limited v Eretta Pty Limited (1987) 16 FCR 497
Hughes Bros Pty Limited v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (7 November 1995, unreported; BC 95079079).
K P Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FCR 189

PARTIES: Clarence Street Pty Limited (Plaintiff)
ISIS Projects Pty Limited (Defendant)

FILE NUMBER(S): SC 55075/04

COUNSEL: F C Corsaro SC/J Rose
M R Elliott/C Henry

SOLICITORS: Watson Mangioni (Plaintiff)
Turtons Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

26 March 2007 (Ex tempore – revised 17 April 2007)

ISIS PROJECTS PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application for further security for costs. It is brought pursuant to s 1335 of the Corporations Act 2001 or alternatively, pursuant to UCPR r 42.21, or alternatively, pursuant to the Court’s inherent jurisdiction. There is no doubt - it was not disputed - that the relevant jurisdictional fact, namely, that the Court be satisfied that the plaintiff, if called upon to do so, would be unlikely to be in a position to pay the defendant’s costs - has been established.

2 It is necessary to pay some attention to the background. The proceedings relate to a construction contract between the plaintiff, as proprietor, and the defendant, as builder. The defendant made a number of claims pursuant to the Building and Construction Industry Security of Payment Act 1999.

3 One of those claims, numbered 13, and served on 15 July 2003, was for a little under $750,000. There were proceedings in this Court relating to that progress claim, and an earlier one, which was substantially repeated in the latter. I determined the challenges to the payment claim in favour of the present defendant: Isis Projects v Clarence Street [2004] NSWSC 714.

4 In these proceedings, the plaintiff alleges, among other things, that it has overpaid the defendant for the construction work carried out by the defendant, and that part of the work carried out by the defendant was incomplete or defective. The plaintiff also alleges that the defendant has breached a term of the contract requiring the defendant to furnish “as built” construction drawings on completion of the project.

5 As to the claim for overpayment, the plaintiff wishes to argue - and in principle must succeed on the argument - that no estoppel flows from any prior adjudication or from any judgment…

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.

Continue reading Clarence Street v ISIS Projects

Details

AGLC: Clarence Street v Isis Projects [2007] NSWSC 380
Case: [2007] NSWSC 380
Decision Date: 26 March 2007

CaseChat Overview and Summary

In this case, the plaintiff, Clarence Street, sought to recover damages for alleged breaches of contract and for an injunction to restrain the defendants, ISIS Projects, from continuing their construction activities. The defendants had already been ordered to provide security for costs, but the plaintiff now sought an order for additional security, alleging that the defendants had not complied with the original order. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendants' earlier provision of security for costs without prejudice to their entitlement to seek further security would permit them to do so at a later time, despite the plaintiff's allegation of delay. The court had to determine if the defendants' delay in seeking additional security constituted a bar to their application.

The court found that the defendants' earlier provision of security for costs did not preclude them from seeking additional security at a later time, provided that the delay did not prejudice the plaintiff. The court held that the defendants' delay in seeking additional security did not constitute a bar to their application, as the plaintiff had not been prejudiced by the delay. The court further held that the defendants' entitlement to seek additional security was not dependent on the plaintiff's consent, but rather on the court's discretion to grant it. The court considered the defendants' financial position and the likelihood of their ability to pay the costs if judgment were entered against them.

The court ordered the defendants to provide additional security for costs within 14 days of the judgment, and further ordered that if the defendants failed to do so, the plaintiff could apply to have the defendants' defence struck out. The court noted that the defendants' delay in seeking additional security was a factor to be considered in determining the amount of security required, but that it did not automatically bar their application. The court emphasised the importance of parties complying with orders for security for costs to avoid unnecessary costs and delays in litigation.

Orders