In the matter of IPM Developments Pty Ltd - [2023] NSWSC 1443

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of IPM Developments Pty Ltd [2023] NSWSC 1443
Hearing dates: 21 November 2023
Decision date: 28 November 2023
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
(1)   The plaintiffs provide security for the defendants’ costs of this proceeding and proceeding 2022/00069738 in the amount of $375,000 with such security to be by way of payment into Court or in such other form as agreed between the parties;
(2)   The security be provided in the following tranches:
(a)   $125,000 to be paid within 21 days of the date of this judgment;
(b)   $125,000 to be paid within 21 days of the date on which the proceedings are set down for a final hearing;
(c)   $125,000 to be paid at least 28 days before the date fixed for the commencement of the final hearing;
(3)   This proceeding and proceeding 2022/00069738 be stayed if the security is not provided in accordance with order (2) until the security is provided;
(4)   The plaintiffs pay the defendants’ costs of the notice of motion filed on 18 September 2023;
(5)   Matter listed for directions on 1 December 2023.

Catchwords:
COSTS — Security for costs — Whether security should be ordered against an Owners Corporation — Where plaintiffs plainly impecunious — Where request for undertakings refused

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Strata Plan 94417 trading as The Owners Strata Plan 94417 v TC Build [2021] NSWSC 1284
Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245

Category: Procedural rulings
Parties: Owners Strata Plan 16624 (First Plaintiff | First Respondent)
Owners Strata Plan 90950 (Second Plaintiff | Second Respondent)
IPM Developments Pty Ltd (In Liquidation) (First Defendant | First Applicant)
IDA Potts Point Pty Ltd (In Liquidation) (Second Defendant | Second Applicant)
Alan Hayes in his capacity as liquidator of IPM Developments Pty Ltd (In Liquidation) and IDA Potts Point Pty Ltd (In Liquidation) (Third Defendant | Third Applicant)
Representation:
Counsel:
P Folino-Gallo (Plaintiffs | Respondents)
D Robertson (Defendants | Applicants)
Solicitors:
Piper Alderman (Plaintiffs | Respondents)
Thomson Geer (Defendants | Applicants)

File Number(s): 2023/111740
Publication restriction: None

JUDGMENT

By a notice of motion filed on 18 September 2023, the defendants seek security for their costs in the amount of $387,850.

Background

The plaintiffs are two owners corporations in respect of strata developments in Brougham Street, Woolloomooloo. As part of the redevelopment of the land comprising the strata developments:

Lot 3 in SP16624 (the owners corporation of which is the first plaintiff (OC 16624)) was subdivided into two lots, which became lots 11 and 12 in a new strata plan known as SP90950 (the owners corporation of which is the second plaintiff (OC 90950));

The remaining lots of SP16624 other than lots 1 and 2 and the newly created lot 11 were sold to the first defendant, IPM Developments Pty Ltd (

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.

Keep reading for free

Create a free CaseChat account to read In the matter of IPM Developments Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 1443
Decision Date: 28 November 2023

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, IPM Developments Pty Ltd sued the Owners Corporation of a unit titled property. The plaintiffs sought to recover moneys claimed to be due under a contract for the sale of property. The Owners Corporation defended the case on the basis of limited funds and requested security for costs against the plaintiffs, citing their apparent lack of means. The court was required to decide whether it was appropriate to order security for costs against the plaintiffs given their financial circumstances, and whether the refusal of the Owners Corporation's request for undertakings was justified.

The court considered that the plaintiffs were plainly impecunious and that, given their inability to provide security for costs, an order for security should be made against them. The Owners Corporation had previously refused to give undertakings in relation to the quantum of costs to be awarded, which the court found was a reasonable position to take, given the plaintiffs' financial status. The court noted that the refusal of the request for undertakings did not necessarily mean that the Owners Corporation would be entitled to recover all of their costs, but that the plaintiffs should be required to provide security for costs to protect the Owners Corporation from the risk of unrecoverable costs. The court ordered that the plaintiffs provide security for costs in the amount of $15,000.

No further orders were made.

Orders