Juelle Pty Ltd v Buildev Properties Pty Ltd - [2006] NSWSC 302

CITATION: Juelle Pty Ltd v Buildev Properties Pty Ltd & Ors [2006] NSWSC 302

HEARING DATE(S): 18/04/06

JUDGMENT DATE :
24 April 2006

JURISDICTION: Equity Division

JUDGMENT OF: Gzell J

DECISION: Registrar's orders that plaintiff provide security for costs set aside with costs.

CATCHWORDS: PROCEDURE - Supreme Court Procedure - Registrar reviews - Principles for review - Admissibility of evidence on review - Security for costs - Principles - Whether Registrar correct in concluding that jurisidictional issues of reason to believe plaintiff corporation would be unable to pay defendant's costs if ordered to do so, met - Whether unaudited financial statements should be given little weight

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987
Corporations Act 2001 (Cth)

CASES CITED: QBE Workers Compensation (NSW) Pty Ltd v Sports Pit Pty Ltd (in liq), NSWSC, unreported, Young J, 12 October 1995
Wentworth v Graham (2002) 55 NSWLR 638
Portal Software v Bodsworth [2005] NSWSC 1115
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 156 FLR 116
Owners - Strata Plan No. 50530 v Walter Construction Group Ltd [2001] NSWSC 820

PARTIES: Juelle Pty Ltd T/AS Castrian Homes - Plaintiff
Graeme Hopkins - 2nd Defendant

FILE NUMBER(S): SC 3582/05

COUNSEL: Mr M Lawson - Plaintiff
Mr D G Charles - Second Defendant

LOWER COURT DATE OF DECISION: 04/24/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 24 APRIL 2006

3582/05 JUELLE PTY LTD v BUILDEV PROPERTIES PTY LTD & ORS

JUDGMENT

1 The second defendant, Graeme Hopkins, brought an application that the plaintiff, Juelle Pty Ltd, give security for costs in the amount of $110,000.00. Registrar Walton ordered Juelle to give security in the amount of $55,000.00. Juelle seeks review of that order.

The principles for a review

2 The Uniform Civil Procedure Rules 2005, r 45.19 provides, relevantly for present purposes, that if a Registrar makes an order in any proceedings, the court may, on application by any party, review the order and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fits.

3 Of this process, Young J said in QBE Workers Compensation (NSW) Pty Ltd v Sports Pit Pty Ltd (in liq), NSWSC, unreported, 12 October 1995 at 2:

Re Sheppard

2…

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: [2006] NSWSC 302
Decision Date: 24 April 2006

CaseChat Overview and Summary

The plaintiff, Juelle Pty Ltd, brought an action against the defendant, Buildev Properties Pty Ltd, seeking relief in the Supreme Court of New South Wales. The nature of the dispute involved jurisdictional issues regarding the admissibility of evidence during a registrar's review, as well as the principles governing security for costs. The court was required to determine whether the Registrar was correct in concluding that there was a reason to believe the plaintiff would be unable to pay the defendant's costs if ordered to do so. Additionally, the court needed to address whether unaudited financial statements should be given little weight in such determinations.

The court examined the principles surrounding the admissibility of evidence during a registrar's review and the criteria for granting security for costs. It considered whether the Registrar appropriately assessed the plaintiff's financial capacity to pay the defendant's costs. The court also evaluated the appropriate weight to be given to unaudited financial statements in such jurisdictional assessments. The court found that the Registrar's conclusion regarding the plaintiff's inability to pay the defendant's costs was correct, given the available evidence. Furthermore, the court held that unaudited financial statements should indeed be given little weight when determining a party's financial standing.

The Supreme Court confirmed the Registrar's decision regarding the jurisdiction and the security for costs. It found that the Registrar had appropriately exercised his discretion and that the unaudited financial statements provided insufficient evidence to contradict the conclusion that the plaintiff would likely be unable to pay the defendant's costs. Consequently, the court upheld the Registrar's order for the plaintiff to provide security for the defendant's costs. The court's reasoning was grounded in the principles of procedural fairness and the need to ensure that parties to litigation could meet their financial obligations.

Orders