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 dismissedLegislation 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, 42.21Cases 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…
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- Case
- [2020] NSWSC 745
- Decision Date
CaseChat Overview and Summary
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.
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