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Galati v Deans

Galati v Deans

Case [2018] NSWSC 1600 24 October 2018

Limitation Periods

Security for Costs

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Galati v Deans [2018] NSWSC 1600
Hearing dates: 16 October 2018
Date of orders: 24 October 2018
Decision date: 24 October 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Subject to the filing in Court within 7 days of signed undertakings by each of the first cross-claimant and his wife, Ms Sharon Louise Deans, in the form annexed to the affidavit affirmed 9 October 2018 of Matthew Nicholas Robinson but with the additional undertaking articulated by Senior Counsel for the cross-claimants in the course of the hearing of the tenth cross-defendant’s application for security for costs (and without prejudice to the ability of the tenth cross-defendant at a later stage to make any further application pursuant to rule 42.21(1) of the Uniform Civil Procedure Rules (NSW) and/or s 1335(1) of the Corporations Act 2001 (Cth) for security to be provided by the second cross-claimant, Fishbank Development Corporation Pty Limited),
(a) dismiss the tenth cross-defendant’s present application for security for costs; and
(b) order that the costs of the tenth cross-defendant’s application for security for costs be costs in the cause.

Catchwords: CIVIL PROCEDURE – Application for security for costs – Relevant considerations – Where cross-claimant corporation admitted it would be unable to pay costs of cross-defendant but undertakings provided by two individuals to be responsible for costs of cross-defendant – Held not an appropriate case for the exercise of the discretion to order security – Application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 3
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 20, 30
Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), r 42.21
Cases Cited: Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301
Epping Plaza Fresh Fruit and Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191; [1999] VSCA 43
Idoport Pty Ltd v National Australia Bank Limited [2002] NSWCA 271
In the matter of Australian Style Holdings Pty Ltd as trustee of The Australian Style Investments Unit Trust [2018] NSWSC 1368
In the Matter of Felan’s Fisheries Pty Limited [2016] NSWSC 1351
Jazabas Pty Ltd v Haddad [2007] NSWCA 291; 65 ACSR 276
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Live Board Holdings Ltd v Cody Live Pty Limited [2017] NSWCA 302
Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93
Mahesan v Malaysia Government Officers’ Co-operative Housing Society Ltd [1979] AC 374
Porter v Gordian Runoff Limited [2004] NSWCA 171
Prynew Pty Limited v Nemeth [2010] NSWCA 94
Tyneside Property Management Pty Limited v Hammersmith Management Pty Ltd [2013] NSWCA…

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 Galati v Deans

Details

AGLC: Galati v Deans [2018] NSWSC 1600
Case: [2018] NSWSC 1600
Decision Date: 24 October 2018

CaseChat Overview and Summary

Galati v Deans involved a dispute over an application for security for costs. The applicant, Galati, sought security for the costs of defending against a cross-claim made by Deans, who was represented by a corporation. The corporation admitted it would be unable to pay the costs of the cross-defendant if ordered. Two individuals associated with the corporation provided undertakings to be responsible for those costs. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the application for security for costs was appropriate. Key considerations included the financial position of the cross-claimant corporation and the adequacy of the undertakings provided by the two individuals. The court examined whether the application met the criteria for ordering security, including the risk of the cross-defendant being unable to pay costs if judgment were entered in their favour.

The court found that the corporation's admission of its inability to pay costs was significant, but the undertakings provided by the two individuals were sufficient to address the risk of the cross-defendant being unable to pay costs. The court held that the application was not an appropriate case for the exercise of the discretion to order security for costs. The application was dismissed, and the two individuals were held to be responsible for the costs of the cross-defendant.

The court's decision was based on the adequacy of the undertakings provided by the two individuals and the overall risk assessment. The court concluded that the risk of the cross-defendant being unable to pay costs was sufficiently mitigated by the undertakings. Consequently, the application for security for costs was dismissed, and the final orders reflected this decision.

Orders