Garslev Holdings Pty Ltd v Overdean Developments Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Garslev Holdings Pty Ltd v Overdean Developments Pty Ltd [2022] NSWCA 156

Hearing dates:

On the papers

Decision date:

18 August 2022

Before:

Leeming JA

Decision:

Application to vary the regime for security for costs dismissed, with costs

Catchwords:

PRACTICE – appeals – security for costs – variation – liberty to apply – order to pay $25,000 into court or as otherwise agreed by way of security for costs – appellant unilaterally offers alternative form of security – respondent rejects offer – no basis to vary regime

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), r 51.50(2A)

Cases Cited:

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

Category:

Procedural rulings

Parties:

Garlev Holdings Pty Ltd (First Appellant)
Leonardus Gerardus Smits (Second Appellant)
Peter Shaj Mahommed (Third Appellant)
Vestecorp Financial Services Pty Ltd (Fourth Appellant)
Jacobus Johannes Smits (Fifth Appellant)

Overdean Developments Pty Ltd (First Respondent)
Brian Arthur Dean (Second Respondent)
BAD Nominees (NSW) Pty Ltd (Third Respondent)

Representation:

Counsel:
L Smits (Solicitor for Appellants)
D Allen (Respondents)

Solicitors:
Murray Laws Pty Ltd (Appellants)
Kekatos Lawyers (Respondents)

File Number(s):

2021/349602

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2021] NSWSC 1482

Date of Decision:

17 November 2021

Before:

Williams J

File Number(s):

2018/384191

Judgment

1. LEEMING JA: The appellants have filed an appeal in this Court, which is presently stayed in light of the appellants’ non-compliance with orders for security for costs.

2. Following a hearing on 4 July 2022, I made the following orders:

“1. Order that the appellants provide security for the respondents’ costs of the appeal in the amount of $25,000, in such form as may be agreed between them, or by way of payment to the Registrar of this Court.

2. The security be provided within 28 days of today, pending which the appeal is stayed.

3. Grant liberty to apply to me on three business days’ notice by email to my associate.

4. Note the parties’ agreement that the appeal be listed for a two day hearing, on the basis that Mr Smits’ oral submissions be strictly confined to one day, and Mr Allen’s be confined to no more than three and a half hours, leaving an hour for Mr Smits to reply.

5. The parties’ costs of the notice of motion of 24 March 2022 be each parties’ costs of the appeal.”

3. It should be said that the notice of appeal is very long (it is 44 single-spaced pages with 106 paragraphs many of which have subparagraphs, and has been treated as amounting to the appellants’ submissions), and there have been suggestions that the appeal be set down for four days, which struck me as excessive. The discipline imposed by order 4 reflected statements made by each of Mr Smits and Mr Allen, and…