PPK Willoughby Pty Ltd v Baird - [2018] NSWSC 1889

Supreme Court

New South Wales

Medium Neutral Citation: PPK Willoughby Pty Ltd v Baird [2018] NSWSC 1889
Hearing dates: 6 December 2018
Date of orders: 11 December 2018
Decision date: 11 December 2018
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1)    Order the plaintiff within 28 days to provide security for the costs of the defendants in a form suitable to the defendants and to the Court as follows:
(a)    in an amount of $400,000 as security for the costs of the 2nd to 106th defendants;
(b)    in an amount of $850,000 as security for the costs of the 107th and 108th defendants.
(2)    Stay the proceedings pending compliance by the plaintiff with order (1).
(3)    Direct the parties within 7 days to bring in short minutes of order giving effect to my conclusions.
(4)    Grant liberty to all parties to apply on 24 hours’ notice.

Catchwords: COSTS – security for costs – where alleged delay in bringing application – where no prejudice to the plaintiff
Legislation Cited: Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules (2005), r 42.21
Cases Cited: Australian Worldwide Pty Ltd v AW Exports Pty Ltd [2018] NSWSC 1632
Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176
Covecorp Constructions Pty Ltd v Indigo Products Pty Ltd [2007] QSC 262
Category: Procedural and other rulings
Parties: PPK Willoughby Pty Ltd (Plaintiff/Respondent)
David Baird and 104 others (2nd to 106th Defendant/Applicant)
Roads and Maritime Services (107th Defendant/Applicant)
Minister administering the Environmental Planning and Assessment Act 1979 (108th Defendant/Applicant)
Representation:
Counsel:
M Green SC with A D Crossland (Plaintiff/Respondent)
J Williams (2nd to 106th Defendant/Applicant)
A Shearer (107th and 108th Defendant/Applicant)
Solicitors:
Coleman Greig Lawyers (Plaintiff/Respondent)
Gilchrist Connell (2nd to 106th Defendant/Applicant)
Crown Solicitor’s Office (107th and 108th Defendant/Applicant)

File Number(s): 2012/163736
Publication restriction: Nil

Judgment

HIS HONOUR: All the defendants apart from the first defendant seek security for costs from the plaintiff. The 2nd to 106th defendants do so by notice of motion filed on 31 August 2018. The 107th and 108th defendants do so by notice of motion filed on 5 September 2018. The applications are opposed. In my view, the plaintiff should provide security for costs for these defendants and the proceedings should be stayed until that occurs. This is for the following reasons.

Background

The plaintiff commenced these proceedings by statement of claim filed as long ago as 25 May 2012. The current claim is articulated in the plaintiff’s further amended statement of claim filed on 20 February 2015.
The 2nd to 106th defendants are solicitors practising together in partnership. In late 2009, the plaintiff retained them to act on its behalf on its tender for purchase of a site at Willoughby known as the Willoughby Market Gardens. The plaintiff alleges in several different respects that the solicitors were negligent and breached their retainer in the course of acting for it with the result that it suffered loss and damage.
The 107th and 108th defendants are respectively a statutory body…

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: [2018] NSWSC 1889
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of PPK Willoughby Pty Ltd v Baird involved a dispute between the plaintiff, a property developer, and the defendant, an individual who had previously owned the property in question. The plaintiff sought damages for breach of contract and misrepresentation, as well as an injunction to prevent the defendant from interfering with their development plans. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the plaintiff was entitled to an order for security for costs, given that the defendant had allegedly delayed in bringing their application for such an order. The defendant argued that the delay had prejudiced them, and that the plaintiff was therefore not entitled to the order. However, the court found that there was no evidence of actual prejudice, and that the delay had not caused any significant harm to the defendant.

The court's reasoning was based on the principle that an order for security for costs is not intended to punish a party for delay, but rather to protect them from the financial risks associated with defending a claim. The court noted that the defendant had not demonstrated any actual prejudice resulting from the delay, and that the plaintiff had acted promptly in bringing their application for security for costs once the defendant had raised the issue of delay. The court also emphasised that the primary purpose of an order for security for costs was to ensure that the defendant had sufficient resources to defend the claim, rather than to punish them for delay. Accordingly, the court found that the delay in bringing the application for security for costs did not preclude the plaintiff from obtaining the order.

The outcome of the case was that the plaintiff was granted an order for security for costs, subject to certain conditions. The court ordered the plaintiff to provide a bond in the amount of $50,000, and to indemnify the defendant against any costs incurred in defending the application for security for costs. The defendant was also ordered to pay the plaintiff's costs of the application, on an indemnity basis. The court's decision underscores the importance of acting promptly in bringing applications for security for costs, and the need for parties to demonstrate actual prejudice in order to successfully argue against such an order.

Orders