Liprini v Thirdi William Street Pty Ltd - [2023] NSWSC 1375

Supreme Court

New South Wales

Medium Neutral Citation: Liprini v Thirdi William Street Pty Ltd [2023] NSWSC 1375
Hearing dates: 2 November 2023
Decision date: 15 November 2023
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
The notices of motion filed on 13 October 2022, 20 October 2022 and 21 October 2022 each be dismissed with costs.

Catchwords:
COSTS — Security for costs — Relevant factors — Representative proceedings — Where proceedings brought in part for benefit of others — Plaintiff holds significant equity in real property — Funding agreement in place among the group members — Strong arguable case — No order for security

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Design and Building Practitioners Act2020 (NSW)
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Fodare Pty Ltd v Shearn [2009] NSWSC 1140
Its Eco Pty Ltd v BPS Financial Ltd [2022] FCA 842
Mitchell v Roads and Maritime Services (now known as Transport for NSW) [2022] NSWSC 500
Prynew Pty Ltd v Nemeth [2010] NSWCA 94
St Mary’s Hog’s Pty Ltd v HBCA Pty Ltd [2022] FCA 52
Turner v Tesa Mining (NSW) Pty Ltd (2019) 290 IR 388

Category: Procedural rulings
Parties: Keiran Liprini (Plaintiff)
Thirdi William Street Pty Ltd (First Defendant)
H&M Constructions (NSW) No. 2 Pty Ltd (Second Defendant)
Aiken Design and Consulting Pty Ltd (Third Defendant)
Kimy Air Conditioning Pty Ltd (Fourth Defendant)
Scott Collis Consulting Pty Ltd (Fifth Defendant)
David Mathew Aiken (Sixth Defendant)
Representation:
Counsel:
FP Hicks SC with MD Swanson (Plaintiff)
T Davie (First Defendant)
B Le Plastrier (Second Defendant)
G Hayek (Fifth Defendant)
Solicitors:
Bradbury Legal (Plaintiff)
Williamson Lawyers (First Defendant)
Vincent Young (Second Defendant)
Harrington Lawyers (Fifth Defendant)

File Number(s): 2022/184814
Publication restriction: None

JUDGMENT

Introduction

The plaintiff, Ms Keiran Liprini, is the owner of a lot in a development in William Street, Alexandria, New South Wales, which is governed by a building management statement registered in accordance with s 196D of the Conveyancing Act 1919 (NSW). The development consists of 37 townhouses, each with a parking space in an underground carpark. The rights among the parties in respect of shared property is governed by easements each grants in favour of the others and by the terms of the building management statement which sets out the obligations of the lot owners to contribute to the cost of maintaining shared property. The shared property includes an electrical substation that supplies electricity to all the lots in the development.
Ms Liprini brings this proceeding as a representative of all owners of lots in the development against relevantly the Developer (the first defendant) and the Builder (the second defendant) for breaches of the statutory warranties implied by the Home Building Act 1989 (NSW) (the HBA) in respect of alleged defects in the development including most importantly the electrical substation, and against the fifth defendant, the Hydraulics Consultant, for breach of the statutory duty of care under s 37 of…

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: [2023] NSWSC 1375
Decision Date: 15 November 2023

CaseChat Overview and Summary

The case of Liprini v Thirdi William Street Pty Ltd involved a dispute over security for costs in a representative proceeding. The plaintiff, Liprini, was part of a group that brought proceedings against the defendant, Thirdi William Street Pty Ltd. The nature of the dispute was the determination of whether the plaintiff should provide security for the costs of the defendant in the event of an unsuccessful claim. The matter was heard in the Supreme Court of Victoria.

The court had to consider various legal issues, including the relevance of the plaintiff's equity in the real property, the existence of a funding agreement among the group members, and the strength of the plaintiff's arguable case. The court needed to balance the interests of the plaintiff, who held significant equity in the real property, against the defendant's right to protection against unmeritorious claims. The court also had to examine the funding agreement and determine whether it was a relevant factor in deciding whether to order security for costs.

In delivering the judgment, the court found that the plaintiff held a significant equity in the real property and that there was a funding agreement in place among the group members. The court also found that the plaintiff had a strong arguable case. Considering these factors, the court concluded that it was not appropriate to order the plaintiff to provide security for the defendant's costs. The court acknowledged the plaintiff's equity in the real property as a mitigating factor and noted that the funding agreement provided a level of security for the defendant. The court held that, in the circumstances, ordering security for costs would be unjust.

The court's decision resulted in no order for security being made against the plaintiff. The court recognised the importance of protecting defendants from unmeritorious claims while also considering the interests of plaintiffs in representative proceedings. The court's approach balanced these considerations and resulted in a just outcome for both parties.

Orders