Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 151 Hearing dates: 26 June 2023 Date of orders: 04 July 2023 Decision date: 04 July 2023 Before: Stern JA Decision: (1) The application is dismissed.
(2) The respondents pay the appellants’ costs of the motion.
Catchwords: COSTS — Security for costs — whether special circumstances for ordering security for costs established — rule 50.51 of the Uniform Civil Procedure Rules 2005 (NSW) — whether complete identity between appellants established — Corporations Act 2001 (Cth) s 1335 — status of respondents in security for costs application
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Corporations Act 2001 (Cth), s 1335
Cases Cited: Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1; [1984] FCA 34
Beswick v Beswick [1968] AC 58
Black Hill Residents Group Inc v Marist Youth Care Ltd [2021] NSWCA 314
Boros v Pages Property Investments Pty Ltd [2021] NSWCA 50
Coulls Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460; [1967] HCA 3
Hannaford v Commonwealth Bank of Australia [2013] NSWCA 472
HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87
Hung v Aquamore Credit Equity Pty Ltd [2022] NSWCA 123
Murray John Carter v Ian Mehmett/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32
Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Limited [2007] NSWCA 344
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Prime Form Cutting Pty Ltd v Baltica General Insurance Co (1989) 8 ACLC 29
Tomanovic Multitown Pty Ltd v Interlux Projects Pty Ltd [2022] NSWCA 38
Treloar Constructions Pty Ltd v McMillan [2016] NSWCA 302
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 5 ACLC 542
Category: Principal judgment Parties: Daniel Flynn (First Appellant)
Flynfam Pty Ltd as trustee for the Flynn Family Trust (Second Appellant)
PPK Mining Equipment Pty Ltd (First Respondent)
PPK Group Ltd (Second Respondent)Representation: Counsel:
Solicitors:
Mr AD Justice (Appellants)
Mr AJ Bulley (Respondents)
MRM Lawyers (Appellants)
Moray & Agnew (Respondents)
File Number(s): 2022/00384592 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division – Commercial List
- Citation:
- Date of Decision:
- 02 December 2022
- Before:
- Rees J
- File Number(s):
- 2019/0011615
JUDGMENT
-
STERN JA: By notice of motion filed on 9 June 2023, application is made by PPK Mining Equipment Pty Ltd and PPK Group Limited (together PPK), the respondents to an appeal before this Court, that the respective appellants, Daniel Flynn (Mr Flynn) and Flynfam Pty Ltd (Flynfam) as trustee for the Flynn Family Trust, provide security for costs of the appeal in the sum of $145,000 (or such other sum as is appropriate) within seven days, that the appeal be stayed until such security…
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- Case
- [2023] NSWCA 151
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the primary judge erred in ordering security for costs against the appellants. This involved determining whether there were "special circumstances" justifying the order, particularly in light of the alleged complete identity between the appellants and the respondents in the original proceedings, and the status of the respondents in the context of a security for costs application.
Stern JA dismissed the application, finding that the primary judge had not erred in principle or in fact. The Court held that the respondents had established sufficient grounds for security for costs. The reasoning focused on the fact that the appellants were not the same entities as the respondents in the original proceedings, and therefore the argument of complete identity did not apply to negate the need for security. The Court applied the principles governing applications for security for costs, considering the relevant legislative provisions and the established case law.
The application was dismissed, and the respondents were ordered to pay the appellants’ costs of the motion.
Orders
Orders of the court
(1) The application is dismissed.
(2) The respondents pay the appellants’ costs of the motion.
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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