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Gorilla Rush Pty Ltd v Fraser

Gorilla Rush Pty Ltd v Fraser

Case [2025] NSWCA 191 19 August 2025

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gorilla Rush Pty Ltd v Fraser [2025] NSWCA 191
Hearing dates: 14 August 2025
Date of orders: 14 August 2025
Decision date: 19 August 2025
Before: Ward P; Leeming JA
Decision:
1.   Refuse leave to appeal.
2.   Order the applicant to pay the respondent’s costs of the application for leave to appeal.
3.   Liberty to apply within 14 days by notice of motion if there is any variation to the costs order.

Catchwords:
CIVIL PROCEDURE – application for leave to appeal from interlocutory orders – where primary judge dismissed strike out motion brought under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether primary judge failed properly to consider strike out motion – whether primary judge erred in assessing pleadings issues in respect to collateral contract claim – leave to appeal refused.
COSTS – security for costs – application for leave to appeal – where primary judge ordered a security for costs against overseas plaintiff in the sum of $53,300 – whether primary judge erred by limiting security for costs on basis of amount respondent had readily accessible to avoid stultification of proceedings – leave to appeal refused.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 31, 236
District Court Act 1973 (NSW), s 127(2)(a)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 42.21(1)(a), 42.21(1A)

Cases Cited:
Barton v Minister for Foreign Affairs (1984) 2 FCR 463
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Clarke v State of New South Wales [2015] NSWCA 27
Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676
Fraser v Gorilla Rush Pty Ltd [2025] NSWDC 109
House v The King (1936) 55 CLR 499; [1936] HCA 40
Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 744
In the matter of the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318
Inglis v English Language Company Australia Pty Ltd [2020] NSWSC 1058
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
Lucas v Yorke (1983) 50 ALR 228
Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397
S1 v The Trustees of Marist Brothers [2016] NSWSC 970
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114
Steiner v Strang [2016] NSWSC 9
Tim Barr Pty Ltd v Nauri Gold Coast Pty Ltd [2009] NSWSC 563
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534

Category: Principal judgment
Parties: Gorilla Rush Pty Ltd (First Applicant)
Samuel Oliver Johnson (Second Applicant)
Paul Fraser (Respondent)
Representation:
Counsel:
O Fagir (Applicants)
A Vernier (Respondent)

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 Gorilla Rush Pty Ltd v Fraser

Details

AGLC: Gorilla Rush Pty Ltd v Fraser [2025] NSWCA 191
Case: [2025] NSWCA 191
Decision Date: 19 August 2025

CaseChat Overview and Summary

Gorilla Rush Pty Ltd (the applicant) sought leave to appeal from interlocutory orders made by a primary judge. The primary judge had dismissed a motion brought by the applicant to strike out certain pleadings under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). The applicant also sought leave to appeal an order for security for costs made against it as an overseas plaintiff.

The legal issues before the Court of Appeal were whether the primary judge failed to properly consider the strike-out motion, specifically in relation to the assessment of pleadings concerning a collateral contract claim, and whether the primary judge erred in limiting the security for costs order to an amount the respondent had readily accessible, so as to avoid stultifying the proceedings.

The Court of Appeal refused leave to appeal on both grounds. Regarding the strike-out motion, the Court found no error in the primary judge's assessment of the pleadings. Concerning the security for costs, the Court held that the primary judge had correctly exercised their discretion, balancing the need for security with the risk of preventing the overseas plaintiff from pursuing its claim.

Consequently, leave to appeal was refused, and the applicant was ordered to pay the respondent’s costs of the application for leave to appeal, with liberty to apply within 14 days regarding any variation to the costs order.

Orders

Orders of the court

1. Refuse leave to appeal.

2. Order the applicant to pay the respondent’s costs of the application for leave to appeal.

3. Liberty to apply within 14 days by notice of motion if there is any variation to the costs order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Gorilla Rush Pty Ltd v Fraser [2025] NSWCA 191

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Fraser v Gorilla Rush Pty Ltd
[2025] NSWDC 109 Para 1

…Rules 2005 (NSW) (UCPR) and granting security for costs in their favour but not in the amount they had sought (see Fraser v Gorilla Rush Pty Ltd [2025] NSWDC 109). We refer to these as the pleading issue and the security for costs issue, respectively. Leave is necessary pursuant to s 127(2)(a) of the District Cour…
Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company
[2022] NSWCA 118 Para 13

…ons Trust v Das [2012] NSWCA 164 and, more recently, Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]). Where, as here, the subject of the appeal relates to matters of practice and procedure, there is a well-known (and understandable) reluctan…
Inglis v English Language Company Australia Pty Ltd
[2020] NSWSC 1058 Para 10

…is issue ([37]-[44]), concluding that he intended to apply what had been described by Ierace J in Inglis v English Language Company Australia Pty Ltd [2020] NSWSC 1058 at [42] as the “balancing process” to order the provision of security for costs “but not such amount of costs as would stifle these proceedings” (pri…
Barton v Minister for Home Affairs
[2019] FCA 120 Para 28

…Reference is also made by the respondent to the decision of Morling J in Barton v Minister for Foreign Affairs (1984) 2 FCR 463, where a, if not the, dispositive factor in the exercise of discretion to award security for costs against an overseas impecunious applicant was the concern not, by reason of such an order…
S1 v The Trustees of Marist Brothers
[2016] NSWSC 970 Para 17

…d will be granted (see, for example, the discussion in Steiner v Strang [2016] NSWSC 9 at [26]-[27], [49]; S1 v The Trustees of Marist Brothers [2016] NSWSC 970 at [51]-[52]; Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 536-537; and Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676…
Steiner v Strang
[2016] NSWSC 9 Para 17

…a successful strike out application it is likely that liberty to replead will be granted (see, for example, the discussion in Steiner v Strang [2016] NSWSC 9 at [26]-[27], [49]; S1 v The Trustees of Marist Brothers [2016] NSWSC 970 at [51]-[52]; Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 536-537; and Commo…
Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd
[2015] NSWCA 397 Para 30

…management principles enshrined in the Civil Procedure Act (as recognised in Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 at [45]).…
Clarke v State of New South Wales
[2015] NSWCA 27 Para 13

…rinciple, a question of public importance or a clear injustice that is more than merely arguable (see, for example, Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trus…
Commonwealth Bank of Australia v ZYX Learning Centres Limited
[2014] NSWSC 1676 Para 17

…C 970 at [51]-[52]; Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 536-537; and Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 at [254]-[256]). Further, it is submitted by the applicants that the claim(s) as currently pleaded will require the applicants to speculate as to the true…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 13

…s Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 and, more recently, Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]). Where…
Jaycar Pty Ltd v Lombardo
[2011] NSWCA 284 Para 13

…rke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 and, more recently, Cheng v Motor Yacht Sales Australia Pty…
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd
[2009] NSWSC 563 Para 29

…said, in appropriate cases an order for security for costs may include both past and future costs (see Tim Barr Pty Ltd v Nauri Gold Coast Pty Ltd [2009] NSWSC 563, for example).…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 17

…iner v Strang [2016] NSWSC 9 at [26]-[27], [49]; S1 v The Trustees of Marist Brothers [2016] NSWSC 970 at [51]-[52]; Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 536-537; and Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 at [254]-[256]). Further, it is submitted by the applicants…
Idoport Pty Ltd v National Australia Bank Ltd
[2001] NSWSC 744 Para 27

…The respondent points to what was said in Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 744 by Einstein J at [62] as to the requirement, once an entitlement to security is established, for the plaintiff to satisfy the Court taking into account all relevant factors that the Court’s discretion ought…
Carolan v AMF Bowling Pty Ltd
[1995] NSWCA 69 Para 13

…ore than merely arguable (see, for example, Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 and, more r…
House v R
[1936] HCA 40 Para 13

…at 323). Where the matter involves exercise of a discretion, error in the House v The King sense (referring to House v The King (1936) 55 CLR 499; [1936] HCA 40) must be shown.…
House v The King
63 WN 176

…ommonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 Fraser v Gorilla Rush Pty Ltd [2025] NSWDC 109 House v The King (1936) 55 CLR 499; [1936] HCA 40 Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 744 In the matter of the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 Inglis v En…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
56, 57, 58, 60 5 mentions (from Para 30)
Uniform Civil Procedure Rules 2005 (NSW)
13.4, 14.28, 42.21(1)(a), 42.21(1A) 5 mentions (from Para 1)
District Court Act 1973 (NSW)
127(2)(a) 2 mentions (from Para 1)
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 2)

Medium Neutral Citation:	Gorilla Rush Pty Ltd v Fraser [2025] NSWCA 191
Hearing dates:	14 August 2025
Date of orders:	14 August 2025
Decision date:	19 August 2025
Before:	Ward P; Leeming JA
Decision:	1. Refuse leave to appeal. 2. Order the applicant to pay the respondent’s costs of the application for leave to appeal. 3. Liberty to apply within 14 days by notice of motion if there is any variation to the costs order.
Catchwords:	CIVIL PROCEDURE – application for leave to appeal from interlocutory orders – where primary judge dismissed strike out motion brought under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether primary judge failed properly to consider strike out motion – whether primary judge erred in assessing pleadings issues in respect to collateral contract claim – leave to appeal refused. COSTS – security for costs – application for leave to appeal – where primary judge ordered a security for costs against overseas plaintiff in the sum of $53,300 – whether primary judge erred by limiting security for costs on basis of amount respondent had readily accessible to avoid stultification of proceedings – leave to appeal refused.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 31, 236 District Court Act 1973 (NSW), s 127(2)(a) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 42.21(1)(a), 42.21(1A)
Cases Cited:	Barton v Minister for Foreign Affairs (1984) 2 FCR 463 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 Clarke v State of New South Wales [2015] NSWCA 27 Commonwealth Bank of Australia v ZYX Learning Centres Limited [2014] NSWSC 1676 Fraser v Gorilla Rush Pty Ltd [2025] NSWDC 109 House v The King (1936) 55 CLR 499; [1936] HCA 40 Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 744 In the matter of the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 Inglis v English Language Company Australia Pty Ltd [2020] NSWSC 1058 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Lucas v Yorke (1983) 50 ALR 228 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 S1 v The Trustees of Marist Brothers [2016] NSWSC 970 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 Steiner v Strang [2016] NSWSC 9 Tim Barr Pty Ltd v Nauri Gold Coast Pty Ltd [2009] NSWSC 563 Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Category:	Principal judgment
Parties:	Gorilla Rush Pty Ltd (First Applicant) Samuel Oliver Johnson (Second Applicant) Paul Fraser (Respondent)
Representation:	Counsel: O Fagir (Applicants) A Vernier (Respondent)