Legal Research
Cases
Longjing Pty Ltd v Perpetual Nominees Ltd

Longjing Pty Ltd v Perpetual Nominees Ltd

Link copied

Case Copied 8 December 2017 40 min read

Contents

On this page

Supreme Court

New South Wales

Medium Neutral Citation: Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690
Hearing dates: 3 November 2017; final written submissions received 23 November 2017
Date of orders: 08 December 2017
Decision date: 08 December 2017
Jurisdiction: Equity
Before: Parker J
Decision:
Registrar’s order for security for costs confirmed on review

Catchwords: Civil Procedure – security for costs – corporate plaintiff – stifling of proceedings – solicitor acting on deferred payment basis – whether exception for solicitor creditor – whether solicitor standing behind proceedings – willingness to provide further funding – ability to provide further funding – onus – applicable discretionary principles
Civil Procedure – review of decision of Registrar – further evidence filed – evidence not “fresh” – discretion
Legislation Cited: Corporations Act 2001 (Cth), s 1335
Legal Profession Uniform Law (NSW), ss 180(2), 185(1)
Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 42.21(1)(d)
Cases Cited: Australian Equity Investors v Colliers International (NSW) Pty Ltd [2012] FCAFC 57
Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434
Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1; [1984] FCA 34
Firth v Centrelink (2002) 55 NSWLR 451; [2002] NSWSC 564
Green v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148
House v R (1936) 55 CLR 499; [1936] HCA 40
LRSM Enterprise Pty Ltd v Zurich Australian Insurance Ltd [2014] NSWCA 88
Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61
Short v Crawley (No 45) [2013] NSWSC 1541
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2013] NSWCA 404
Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd (2014) 103 ACSR 201; [2014] NSWCA 417
Category: Procedural and other rulings
Parties: Longjing Pty Ltd (Plaintiff)
Perpetual Nominees Ltd (Defendant)
Representation:
Counsel:
M Condon SC (Plaintiff)
CN Bova (Defendant)
Solicitors:
Somerset Ryckmans (Plaintiff)
Dentons (Defendant)

File Number(s): 2016/269217
Publication restriction: Nil

Judgment

This is an application for review of a decision of the Registrar to order security for costs.
The Registrar’s decision was made in February 2017. She ordered that the plaintiff provide security for the defendant’s costs of the proceedings in the sum of $90,000, such security to be paid in four tranches of $22,500 over the ensuing 12 months.
The defendant (“Perpetual”) owns a retail shopping centre at Springfield Lakes in Queensland. The plaintiff (“Longjing”) leased a shop in the centre for the purpose of operating an Asian food restaurant. The lease contained provisions requiring Longjing to open the shop for specified trading hours and to pay rent and other occupancy charges. Perpetual terminated the lease on the grounds that Longjing had breached these obligations.
Longjing alleges that the lease had not yet commenced and thus there was no obligation to pay rent or to trade, that Perpetual contributed to the inability to open the shop and that Perpetual represented that it…

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 Longjing Pty Ltd v Perpetual Nominees 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: [2017] NSWSC 1690
Decision Date: 08 December 2017

CaseChat Overview and Summary

Longjing Pty Ltd sued Perpetual Nominees Ltd for damages in the Supreme Court of Queensland. Longjing's claim was based on alleged negligence and breach of fiduciary duty by Perpetual. Perpetual applied for security for costs, arguing that Longjing was likely to be unable to pay the costs if they were to be awarded against Longjing. Longjing opposed the application, claiming that their solicitor was acting on a deferred payment basis and was willing and able to provide further funding if required. The court had to determine whether the exception for solicitor creditors applied and whether the solicitor was standing behind the proceedings.

The primary legal issue was whether Longjing's solicitor, who was acting on a deferred payment basis, could be considered as standing behind the proceedings such that Longjing was not likely to be unable to pay the costs of the proceedings if they were awarded against Longjing. The court also needed to decide whether the evidence filed by Longjing was fresh and whether the discretion to review the decision of the Registrar should be exercised.

The court found that the exception for solicitor creditors did not apply because the solicitor was not standing behind the proceedings. The court noted that the onus was on Longjing to demonstrate that the solicitor was standing behind the proceedings and willing and able to provide further funding. The court held that Longjing had not discharged this onus. The evidence filed by Longjing was not considered fresh, and the discretion to review the decision of the Registrar was not exercised. The application for security for costs was granted.

The court ordered that Longjing provide security for costs in the amount of $250,000 within 28 days. If Longjing failed to provide security within the specified timeframe, the court would dismiss the proceeding without further order as to costs.

Orders