Macarthur Projects Pty Ltd v Cottage Developers Pty Ltd - [2019] NSWSC 1149

Supreme Court

New South Wales

Medium Neutral Citation: Macarthur Projects Pty Ltd v Cottage Developers Pty Ltd [2019] NSWSC 1149
Hearing dates: 28 August 2019; 2 September 2019
Date of orders: 03 September 2019
Decision date: 03 September 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Order the plaintiff to provide security for the defendants’ costs in the following tranches:
(a)   the sum of $75,000 within seven days;
(b)   the sum of $75,000 within 28 days of directions being made specifying the timetable for the filing of evidence; and
(c)   the sum of $100,000 within 42 days of the matter being set down for hearing.
2.   Order that security be provided by payment into Court or by unconditional bank guarantee in a form acceptable to the defendants or, in the event of dispute, acceptable to the Court.
3.   Order that the proceedings be stayed in the event of failure by the plaintiff to make any of the payments for security provided for under Order 1 (or the payment provided for under Order 4) within the time specified.
4.   Order that the plaintiff provide security in the sum of $130,000 (in accordance with Order 2 above) for the costs incurred in proceedings 2018/00152494 in this Court (which costs are the subject of costs orders made by Parker J in those proceedings and of an application for costs assessment lodged by the first defendant on 15 August 2019); and order that the defendants be entitled to draw down on so much of that security as necessary to satisfy any judgment obtained as a result of the costs assessment process.
5.   Note that the orders made for the provision of security (Orders 1 and 4 above) are without prejudice to the defendants making any further application for security for the costs of these proceedings or the costs incurred in the previous proceedings, in the event that the security so ordered is insufficient to secure the costs actually incurred in the present proceedings (or the subject of the final costs assessment in the 2018 proceedings).
6.   Order that the costs of the defendants’ notice of motion filed 29 July 2019 be costs in the cause.
7.   Transfer the proceedings to the Technology and Construction List.

Catchwords: CIVIL PROCEDURE— Summary disposal — Dismissal of proceedings — Abuse of process – application for dismissal of proceedings or the striking out of the statement of claim or orders in respect of costs incurred in earlier proceedings – whether an abuse of process to bring fresh proceedings in circumstances where the first proceedings were dismissed for their failure to provide security for costs
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59, 67, 91
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(c), 14.28(1), 36.16
Victorian Supreme Court Rules (2015), r 60.03(3)(a)
Cases Cited: Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700 at
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Batistatos v Roads…

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

AGLC: Macarthur Projects Pty Ltd v Cottage Developers Pty Ltd [2019] NSWSC 1149
Case: [2019] NSWSC 1149
Decision Date: 03 September 2019

CaseChat Overview and Summary

The court was asked to consider whether an application to dismiss proceedings, strike out the statement of claim or order costs, was an abuse of process. The parties involved in the dispute were Macarthur Projects Pty Ltd and Cottage Developers Pty Ltd. The central issue revolved around the dismissal of proceedings for the failure to provide security for costs and the subsequent initiation of fresh proceedings. The court needed to determine if bringing fresh proceedings in such circumstances constituted an abuse of process.

In addressing this issue, the court considered the principles of abuse of process and the circumstances leading to the dismissal of the initial proceedings. It examined whether the subsequent proceedings were an abuse of the court’s process, given that they were brought without the provision of security for costs as previously required. The court noted that the dismissal for lack of security was not an indication of the merits of the case, but rather a procedural requirement. The court also took into account the need to prevent the misuse of the court’s process and the potential for vexatious litigation.

The court concluded that the application to dismiss the proceedings, strike out the statement of claim or order costs, was not an abuse of process. It held that the dismissal of the initial proceedings for failure to provide security for costs did not prevent the bringing of fresh proceedings, provided the necessary security was forthcoming. The court ruled that the defendants were not abusing the process of the court by enforcing their right to require security for costs, and that the plaintiff’s failure to provide such security did not constitute an abuse of process. The application for dismissal or striking out was thus not an abuse of the court’s process.

The court ordered that the application to dismiss the proceedings or strike out the statement of claim was dismissed. It also directed that the plaintiff pay the defendants' costs of the application, reflecting its view that the defendants had not acted improperly in enforcing their right to security for costs.

Orders