Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWCA 271

Hearing dates:

12 November 2018

Decision date:

12 November 2018

Before:

Basten JA

Decision:

(1)   Order that the appeal be stayed pending the appellant giving security in an amount of $85,000 by way of a caveatable interest over one of the properties in the ownership of Mrs Bassil.

 

(2)   Reserve liberty to the first and second respondents to apply to increase that amount in the event that the appellant is permitted to call further evidence.

 

(3)   Direct that the parties obtain a date from the Registrar for the hearing of the appellant’s motion for leave to call further evidence, to be listed in advance of the appeal.

 

(4)   Costs of today to be costs in the appeal.

 (5)   Liberty to apply if there is an impasse as to the form of the security.

Catchwords:

CIVIL PROCEDURE – appeal – security for costs – whether appellant likely to meet an adverse costs order – appellant a trustee – director offering security over property

  CIVIL PROCEDURE – appeal – application to call further evidence – likely effect on costs of appeal – direction that motion be heard before the date for hearing the appeal

Category:

Procedural and other rulings

Parties:

Comlin Holdings Pty Ltd (Applicant)
Metlej Developments Pty Ltd (First Respondent)
Nova Scotia Developments Pty Ltd (Second Respondent)
Kayrouz Constructions Pty Ltd (Third Respondent)
L.A.D.S. Developments Pty Ltd (Fourth Respondent)

Representation:

Counsel:
Mr P King (Applicant)
Mr L Gor (First and Second Respondents)

  Solicitors:
McKell Solicitors (Applicant)
Sachs Gerace Broome (Solicitors)

File Number(s):

2018/185926

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 761

Date of Decision:

28 May 2018

Before:

Parker J

File Number(s):

2014/285405

Judgment

1. BASTEN JA: In this matter there is an appeal on foot brought by Comlin Holdings Pty Ltd against Metlej Developments Pty Ltd and other parties. The appellant was the unsuccessful party in a trial which lasted for four days before Parker J in the Equity Division. Orders were made on 28 May 2018. A notice of appeal was filed on 24 August 2018. There are four respondents to the appeal. An arrangement has been made which is acceptable to the third and fourth respondents with respect to security for the costs of the appeal.

2. The matter before the Court is an application by the first and second respondents for an order by way of security. There are three issues which need to be addressed. The first is whether the Court is satisfied that the appellant would be good for costs if an adverse costs order were made against it in the appeal. The second question is whether, as has been proposed by the appellant, one of its directors may come forth and proffer security on its behalf and whether that should be accepted and if so in what amount. The third issue concerns an application by…