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HP Mercantile Pty Ltd v Dierickx

HP Mercantile Pty Ltd v Dierickx

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87
Hearing dates: 8 April 2013
Decision date: 08 April 2013
Before: Ward JA
Decision:
Orders made for provision of security for costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - application for security for costs
Legislation Cited: Corporations Act 2005 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Beach Petroleum NL v Johnson [1992] 7 ACSR 2003
Equity Access v Westpac Banking Corporation [1989] ATPR 40-972
Harrington Services Pty Ltd (In Liquidation) v Harrington [2003] NSWCA 89
Hurworth Nominees Pty Ltd v ANZ Banking Group [2005] NSWSC 1360
Livingspring v Kliger Partners [2008] VSCA 93
Meni's Tailoring and Alterations Pty Ltd v Jeanswest Corporation Pty Ltd [2003] FCA 1108
Pioneer Park Pty Ltd v Australian ANZ Banking Group [2007] NSWCA 344
Category: Interlocutory applications
Parties: HP Mercantile Pty Ltd (Appellant/Respondent on motion)
Ludo Victor Dierickx (First Respondent/First Applicant on motion)
Wendy Anne Dierickx (Second Respondent/Second Applicant on motion)
Representation: Counsel:
P Knowles (Appellant)
L V Gyles SC with Ms S Fendekian (Respondents)
Solicitors:
Versace McKenzie Lawyers (Appellant)
Piper Aldermann (Respondents)

File Number(s): 12/290553
Decision under appeal

Citation:

[2012] NSWSC 1005

Date of Decision:

2012-08-31 00:00:00

Before:

White J

File Number(s):

06/294773

Judgment (Ex tempore)

HER HONOUR: This is an application brought by notice of appeal, filed 14 March 2013, by the respondents to the appeal, seeking an order pursuant to s 1335 of the Corporations Act 2005 (Cth) and/or r 50.8 of the Uniform Civil Procedure Rules 2005 (NSW) and/or r 42.21 of the Uniform Civil Procedure Rules for the provision of security for anticipated future costs and disbursements of the respondents in relation to the appeal proceeding. The sum of $120,000 has been sought or such other amount as the Court might determine, and consequential orders are sought in relation thereto.

The basis on which the application for security for costs has been made is set out in the short outline of submissions that has been handed up before me today. Reliance is placed on two affidavits sworn by Florian Samuel Ammer, sworn 14 March 2013 and 4 April 2013 respectively. Mr Ammer is the solicitor with the conduct of the proceedings on behalf of the respondents.

The appellant is a company, HP Mercantile Pty Ltd. It sought to recover a loan under a loan agreement from the respondents. The matter came for hearing before White J in December 2011. His Honour accepted that there were misleading and deceptive statements in a particular prospectus as to the manner in which project expenses…

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.

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Details

Case: [2013] NSWCA 87
Decision Date: 08 April 2013

CaseChat Overview and Summary

HP Mercantile Pty Ltd (the applicant) sought security for costs against Dierickx (the respondent) in proceedings before the Court of Appeal of New South Wales. The nature of the underlying dispute between the parties was not detailed in the provided text, but the application concerned the applicant's entitlement to security for costs.

The primary legal issue before the Court of Appeal was whether the applicant had established grounds for an order requiring the respondent to provide security for the applicant's costs of the appeal. This involved an assessment of the relevant rules and principles governing applications for security for costs in appellate proceedings.

Ward JA considered the application and, applying the relevant legal principles, made orders for the provision of security for costs. The specific reasons for this decision and the precise legal principles relied upon were not elaborated in the provided text, beyond the fact that the court found sufficient grounds to grant the application.

The Court of Appeal ordered that security for costs be provided by the respondent.

Orders

Orders of the court

Orders made for provision of security for costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87
Hearing dates:	8 April 2013
Decision date:	08 April 2013
Before:	Ward JA
Decision:	Orders made for provision of security for costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - application for security for costs
Legislation Cited:	Corporations Act 2005 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Beach Petroleum NL v Johnson [1992] 7 ACSR 2003 Equity Access v Westpac Banking Corporation [1989] ATPR 40-972 Harrington Services Pty Ltd (In Liquidation) v Harrington [2003] NSWCA 89 Hurworth Nominees Pty Ltd v ANZ Banking Group [2005] NSWSC 1360 Livingspring v Kliger Partners [2008] VSCA 93 Meni's Tailoring and Alterations Pty Ltd v Jeanswest Corporation Pty Ltd [2003] FCA 1108 Pioneer Park Pty Ltd v Australian ANZ Banking Group [2007] NSWCA 344
Category:	Interlocutory applications
Parties:	HP Mercantile Pty Ltd (Appellant/Respondent on motion) Ludo Victor Dierickx (First Respondent/First Applicant on motion) Wendy Anne Dierickx (Second Respondent/Second Applicant on motion)
Representation:	Counsel: P Knowles (Appellant) L V Gyles SC with Ms S Fendekian (Respondents) Solicitors: Versace McKenzie Lawyers (Appellant) Piper Aldermann (Respondents)
File Number(s):	12/290553
Decision under appeal	Citation: [2012] NSWSC 1005 Date of Decision: 2012-08-31 00:00:00 Before: White J File Number(s): 06/294773