Flynn v PPK Mining Equipment Pty Ltd

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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:
Mr AD Justice (Appellants)
Mr AJ Bulley (Respondents)

Solicitors:
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:

[2022] NSWSC 1640

Date of Decision:
02 December 2022
Before:
Rees J
File Number(s):
2019/0011615

JUDGMENT

  1. 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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Details
Case
[2023] NSWCA 151
Decision Date

CaseChat Overview and Summary

In *Flynn v PPK Mining Equipment Pty Ltd*, the appellants sought to appeal a decision of the primary judge. The respondents, PPK Mining Equipment Pty Ltd and others, applied for security for costs under rule 50.51 of the *Uniform Civil Procedure Rules 2005* (NSW) and section 1335 of the *Corporations Act 2001* (Cth). The primary judge had ordered security for costs, and the appellants sought to have that order set aside.

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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