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Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 2)

Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 2)

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Case Copied 16 June 2020 84 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 2) [2020] NSWSC 745
Hearing dates: On the papers
Date of orders: 16 June 2020
Decision date: 16 June 2020
Jurisdiction: Equity - Expedition List
Before: Williams J
Decision:
Order that the Further Amended Notice of Motion filed by the defendants on 30 August 2019 is dismissed.

Catchwords:
EQUITY – injunctions – interlocutory injunctions – usual undertaking as to damages – application to order the plaintiffs to provide security for an undertaking as to damages proffered to the Court on a previous occasion – no power to order the plaintiffs to provide security retrospectively

EVIDENCE – affidavit evidence – Uniform Civil Procedure Rules 2005 (NSW) r 31.9(1) – whether affidavits filed in other proceedings can be relied upon by the defendants in present proceedings – where not all the parties in other proceedings are the same as the parties in the present proceedings – whether leave should be granted under UCPR r 31.9(2) to the defendants to rely on certain affidavits in the present proceedings in relation to proof of particular facts – limited leave granted

PRACTICE AND PROCEDURE – applications – security for costs – jurisdictional basis – Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1)(f) – whether there is a reason to believe that the plaintiffs have divested assets with the intention of avoiding the consequences of the proceedings – where plaintiffs alleged to have made misleading or deceptive statements to the Court concerning their financial position – where evidence does not show that plaintiffs made misleading or deceptive statements – where there is insufficient evidence to quantify the security for costs order sought in any event – security for costs application dismissed
PRACTICE AND PROCEDURE – applications – summary disposal – where pleadings disclose complex issues of fact and law – where previous application to summarily dispose of the proceedings was dismissed – no relevant change in circumstances to warrant to reconsideration of the application – summary disposal application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 61
Corporations Act 2001 (Cth), s 1335
Superannuation Industry (Supervision) Act 1993 (Cth)
Supreme Court Rules 1970 (NSW), Pt 36 r 7
Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 18.1–18.9, 31.9, 36.16, 42.21
Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007; [2019] HCA 29
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Broadway Plaza Investments v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1082
Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65
Cowell v Taylor (1885) 31 Ch D 34
European Bank Ltd v Robb Evans of Robb Evans & Associates (2010) 240 CLR 432; [2010] HCA 6
First Netcom Pty Ltd v…

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: [2020] NSWSC 745
Decision Date: 16 June 2020

CaseChat Overview and Summary

In Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 2), the plaintiffs, Overdean Developments, sought interlocutory injunctive relief and other orders against the defendants, Garslev Holdings. The defendants, in turn, applied for an order that the plaintiffs provide security for an undertaking as to damages. The case was heard in the Supreme Court of New South Wales. The defendants also sought leave to rely on affidavits from previous proceedings and applied for security for costs based on alleged asset divestment by the plaintiffs.

The court had to determine whether it had the power to retrospectively order the plaintiffs to provide security for an undertaking as to damages. Additionally, it needed to assess whether the defendants could rely on affidavits filed in other proceedings where the parties were not identical and, if so, whether leave should be granted under the Uniform Civil Procedure Rules 2005 (NSW) r 31.9(2). Finally, the court had to decide if there was a sufficient basis to grant the application for security for costs under r 42.21(1)(f) of the UCPR.

The court found that it lacked the power to order the plaintiffs to provide security for an undertaking as to damages retrospectively. It granted limited leave to the defendants to rely on certain affidavits from previous proceedings, despite the differences in parties, under r 31.9(2) of the UCPR. The court dismissed the application for security for costs, noting that there was insufficient evidence to establish that the plaintiffs had divested assets to avoid the consequences of the proceedings or that they had made misleading or deceptive statements to the Court concerning their financial position. There was also insufficient evidence to quantify the security for costs order sought.

The court dismissed the applications for summary disposal, finding no relevant change in circumstances since the previous application to summarily dispose of the proceedings was dismissed. The pleadings disclosed complex issues of fact and law, which precluded summary disposal.

Orders