HP Mercantile Pty Ltd v Plevey

Court of Appeal

New South Wales

Case Title:

HP Mercantile Pty Ltd v Plevey

Medium Neutral Citation:

[2014] NSWCA 374

Hearing Date(s):

30 October 2014

Decision Date:

30 October 2014

Before:

Meagher JA at [1];
Barrett JA at [1]

Decision:

1. Dismiss Summons seeking leave to appeal.
2. Order applicant to pay respondents' costs.
3. Grant leave to respondents' to assess and enforce costs order forthwith.

[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:

APPEAL - leave to appeal - where no reasons for judgment given ordering security for costs - whether appropriate vehicle to consider issues arising

COSTS - security for costs - where two separate sets of proceedings - whether defendant in one proceeding may obtain security for costs incurred in other proceeding in which it is moving party - UCPR, r 42.21(1), Corporations Act 2001 (Cth), s 1335(1)

Legislation Cited:

Corporations Act 2001 (Cth) s 1335
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) rr 28.5, 42.21(1)

Cases Cited:

ABB Service Pty Ltd v Pyrmont Light Rail Co Ltd [2006] NSWSC 187; 57 ACSR 122
Demag-Lauchhammer Maschinenbau Und Stahlbau G.m.b.H v John Holland Constructions Pty Ltd [1966] 2 NSWR 3
Rajski v Computer Manufacture & Design Pty Ltd [1983] 2 NSWLR 122
Winterfield v Bradnum (1878) 3 QBD 23

Category:

Interlocutory applications

Parties:

HP Mercantile Pty Ltd (Applicant)
Gregory Plevey (First Respondent)
Jillian Plevey (Second Respondent)
Antony Kubicki (Third Respondent)
Mark Venables (Fourth Respondent)

Representation

- Counsel:

Counsel:
P M Knowles (Applicant)
B Kremer (Defendants)

- Solicitors:

Solicitors:
Versace McKenzie Lawyers (Applicant)
Tiernan Lawyers (First and Second Respondents)
Jonathan Eastoe (Third and Fourth Respondents)

File Number(s):

2014/160423

Decision Under Appeal

- Before:

Sackar J

- Date of Decision: 

08 May 2014

- Court File Number(s):

2012/201234, 2012/203944, 2012/203945

JUDGMENT

1. THE COURT: The applicant (HPM) seeks leave to appeal from orders made by Sackar J on 8 May 2014 that it provide security for the costs of the respondents (Mr & Mrs Plevey, Mr Kubicki in his personal capacity and as executor of his deceased wife's estate, and Mr Venables) as defendants in separate proceedings brought against them by HPM and in proceedings against HPM brought by each of them by way of defence to its claims. For convenience we refer to each set of parties as a respondent, and to them collectively as the respondents. The amount of security ordered to be provided was $100,000 in all and $33,333.34 for each respondent.

2. Those orders for security were made in the following circumstances. In 2012, HPM brought proceedings in the District Court against the respondents to recover loans made to them by…