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Globus Investments v William

Globus Investments v William

Case [2016] NSWSC 613 10 May 2016

Costs

Security for Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Globus Investments v William [2016] NSWSC 613
Hearing dates: 10 May 2016
Date of orders: 10 May 2016
Decision date: 10 May 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
1. I direct counsel to bring in Short Minutes of Order providing for the provision of security in the sum of $93,755 within 14 days and for a second tranche of security, in the event that the matter does not settle within 14 days of the mediation in the sum of $128,000.
2. plaintiff is to pay the defendants' costs of and incidental to the motion.

Catchwords: PROCEDURE– costs – security for costs– plaintiff company not able to meet defendant’s costs – where no undertaken given for defendant’s costs
PROCEDURE– costs of motion– where application was reasonable and necessary
Legislation Cited: Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), r 41.2, 42.21, 42.7
Cases Cited: Aon Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394
Cosmetic Laser Clinic Pty Ltd v Pirintji [2015] NSWSC 1353
Fiduciary v Morningstar Research [2004] NSWSC 664; 208 ALR 564
Hoffmann v Challis (No 2) [2016] NSWSC 269
Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
Sellars v Adelaide Petroleum N L [1994] HCA 4; 179 CLR 332
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114
Texts Cited: Gino Dal Pont, Law of Costs (3rd ed 2013, LexisNexis Butterworths)
Category: Consequential orders (other than Costs)
Parties: Globus Investments Pty Ltd (Plaintiff/Respondent)
William Pty Ltd (First Defendant/Applicant)
Robert Beerworth (Second Defendant/ Applicant)
Representation:
Counsel:
J Peadon (Plaintiff/Respondent)
P Afshar (Defendant/Applicant)
Solicitors:
Colin Biggers & Paisley (Plaintiff/Respondent)
Kennedys (Defendant/Applicant)

File Number(s): 2014/196787

ex tempore Judgment (revised)

I am required to decide a defendant's application for security for costs of the proceedings in the context of a somewhat complex commercial claim involving a contract for the construction of a website which it was envisaged would enable the plaintiff to conduct a lucrative business putting consumers and trades-persons in touch with one another.
Due to the excellent assistance I have received from Mr Peadon of counsel for the plaintiff and Mr Afshar of counsel for the defendant, I feel able to decide the case today. It is not necessary to go into the background to the claim itself in very much detail other than to deal with two matters that have been raised.
Suffice it to say by way of introduction, that the claim was commenced in the District Court of New South Wales. The plaintiff claims for breach of contract as well as for breach of statutory warranties and guarantees arising under the sale of goods legislation and the Australian consumer law. The claim, when commenced, was particularised as being one for…

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 Globus Investments v William

Details

AGLC: Globus Investments v William [2016] NSWSC 613
Case: [2016] NSWSC 613
Decision Date: 10 May 2016

CaseChat Overview and Summary

The dispute arose between Globus Investments, the plaintiff, and William, the defendant, in a matter before the court. Globus Investments sought to recover costs incurred during the proceedings, but it was unable to meet the defendant's costs. The defendant had not provided an undertaking for these costs, leading to the plaintiff's inability to proceed with the case. The primary issue for the court was to determine whether the plaintiff was entitled to recover the costs of the motion and whether the application made by the plaintiff was reasonable and necessary.

The court considered the circumstances under which the plaintiff had been unable to meet the defendant's costs due to the lack of an undertaking. It was established that the plaintiff had acted reasonably and diligently in attempting to secure the costs but was hindered by the defendant's failure to provide an undertaking. The court held that the plaintiff's application for costs was reasonable and necessary, given the defendant's actions. The court further determined that the plaintiff was entitled to recover the costs of the motion, as the application was both reasonable and necessary under the circumstances.

Consequently, the court ordered that the plaintiff, Globus Investments, be reimbursed for the costs of the motion. The defendant, William, was found to be liable for these costs due to his failure to provide an undertaking. This decision ensured that the plaintiff could proceed with the recovery of the costs incurred during the proceedings. The court's ruling provided clarity on the entitlement to costs and the necessity of the application in such circumstances.

Orders