McMillan v Coolah Home Base Pty Ltd

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McMillan v Coolah Home Base Pty Ltd [2023] NSWCA 172
Hearing dates: 4 July 2023
Date of orders: 27 July 2023
Decision date: 27 July 2023
Before: Mitchelmore JA
Decision:

(1)    Grant an extension of time to the appellants to file and serve their Amended Notice of Appeal to 28 February 2023.

(2) Pursuant to UCPR r 51.50(1), the appellants are to provide within 28 days security:

(a)    in the sum of $10,000 for the second, third, fourth and seventh respondents’ costs of the appeal; and

(b)   in the sum of $15,000 for the fifth and sixth respondents’ costs of the appeal,

either by payment of those amounts into Court or in such other form as the appellants and the respective respondents may agree in writing before that time expires.

(3)    Stay these proceedings until the appellants have provided security in accordance with Order 2.

(4) Subject to compliance with Order 2, leave is granted to the appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the appeal against Coolah Home Base Pty Ltd (in liquidation) as the first respondent.

(5)   The notices of motion filed respectively by the fifth and sixth respondents and the second to fourth and seventh respondents are otherwise dismissed.

(6)   The appellants are to pay the respondents’ costs of the application for the extension of time, and the costs of their respective applications for security for costs.

(7)    List the proceedings before the Registrar on 28 August 2023 for directions.

Catchwords:

CIVIL PROCEDURE — time — extension of time to appeal — length and reason for delay — prejudice to respondent — whether applicant has fairly arguable case — competency of the appeal — Supreme Court Act 1970 (NSW), s 101(2)

CIVIL PROCEDURE — security for costs — power of court to order security for costs — Uniform Civil Procedure Rules 2005 (NSW), r 51.50 — whether special circumstances are present — whether order would stultify proceedings

Legislation Cited:

Australian Consumer Law, s 21

Civil Procedure Act 2005 (NSW), ss 56, 57

Corporations Act 2001 (Cth), ss 232, 247A, 471B, sch 2, ss 90-10, 90-15

Supreme Court Act 1970 (NSW), s 101(2)

Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.9, 51.10, 51.41, 51.50

Cases Cited:

Anderson v Canaccord Genuity Financial Ltd [2022] NSWCA 168

Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406

Baltic Shipping Co Ltd v Dillon (1993) 176 CLR 344; [1993] HCA 4

Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114

Brown v King [2022] NSWCA 75

Canty v PaperlinX Australia Pty Ltd [2014] NSWCA 18

Chandrasekaran v Western Sydney Local Health District [2022] NSWCA 274

Cook v Chesterton International Pty Ltd [2015] NSWCA 306

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA…

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Details
Case
[2023] NSWCA 172
Decision Date

CaseChat Overview and Summary

In McMillan v Coolah Home Base Pty Ltd, the appellants sought an extension of time to file an amended notice of appeal and, in separate applications, security for costs was sought by various respondents. The primary dispute concerned the appellants' ability to pursue their appeal, particularly in light of a significant delay in filing and the potential for prejudice to the respondents. The matter came before Mitchelmore JA of the Court of Appeal of New South Wales.

The court was required to determine two principal legal issues. Firstly, whether an extension of time should be granted for the appellants to file and serve their Amended Notice of Appeal, considering the length and reasons for the delay, the prejudice to the respondents, and whether the appellants had a fairly arguable case. Secondly, the court had to consider whether to order security for costs pursuant to rule 51.50 of the Uniform Civil Procedure Rules 2005 (NSW), assessing whether special circumstances were present and if such an order would stultify the proceedings.

Mitchelmore JA applied the principles governing extensions of time for appeals, balancing the appellants' prospects of success and the reasons for delay against the prejudice to the respondents. The court also considered the criteria for ordering security for costs, noting that such an order should not be made if it would effectively prevent the appeal from proceeding. The court granted the extension of time, finding that the appellants had an arguable case. However, due to the circumstances, including the appellants' financial position and the respondents' costs incurred, the court ordered security for costs.

The court ordered that the appellants be granted an extension of time to file their Amended Notice of Appeal by 28 February 2023. Pursuant to UCPR r 51.50(1), the appellants were required to provide security for costs within 28 days, totalling $10,000 for certain respondents and $15,000 for others, either by payment into court or by written agreement. Proceedings were stayed until security was provided. Leave was granted nunc pro tunc under s 471B of the Corporations Act 2001 (Cth) to commence and proceed with the appeal against the first respondent, which was in liquidation. The notices of motion for security for costs were otherwise dismissed, and the appellants were ordered to pay the respondents’ costs of the application for the extension of time and their respective applications for security for costs. The proceedings were listed for directions on 28 August 2023.

Orders

Orders of the court

(1) Grant an extension of time to the appellants to file and serve their Amended Notice of Appeal to 28 February 2023.

(2) Pursuant to UCPR r 51.50(1), the appellants are to provide within 28 days security:

(a) in the sum of $10,000 for the second, third, fourth and seventh respondents’ costs of the appeal; and

(b) in the sum of $15,000 for the fifth and sixth respondents’ costs of the appeal,

either by payment of those amounts into Court or in such other form as the appellants and the respective respondents may agree in writing before that time expires.

(3) Stay these proceedings until the appellants have provided security in accordance with Order 2.

(4) Subject to compliance with Order 2, leave is granted to the appellant under s 471B of the Corporations Act 2001 (Cth) nunc pro tunc to commence and proceed with the appeal against Coolah Home Base Pty Ltd (in liquidation) as the first respondent.

(5) The notices of motion filed respectively by the fifth and sixth respondents and the second to fourth and seventh respondents are otherwise dismissed.

(6) The appellants are to pay the respondents’ costs of the application for the extension of time, and the costs of their respective applications for security for costs.

(7) List the proceedings before the Registrar on 28 August 2023 for directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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