New South Wales
Court of Appeal
CITATION: Prynew Pty Limited & Anor v Nemeth & Ors [2010] NSWCA 94 HEARING DATE(S): 8 April 2010
JUDGMENT DATE:
6 May 2010JUDGMENT OF: Beazley JA at 1 DECISION: 1. Prynew to provide security for Piling’s costs of the appeal in the sum of $50,000 by 28 May 2010;
2. Such security to be provided by way of bank guarantee;
3. Prynew to pay Piling’s costs of the notice of motion;
4. The matter involving all parties be stood over for further directions to 1 June 2010.CATCHWORDS: COSTS - security for costs - corporate and individual plaintiff and co-plaintiff impecunious - meaning of impecuniosity - COSTS - security for costs - appeal - Corporations Act 2001 (Cth), s 1335 - COSTS - security for costs - co-plaintiff offers undertaking to be responsible for costs of applicant - party offering to guarantee costs impecunious - relevant principles - COSTS - security for costs - case of individual co-plaintiff not co-extensive with case of corporate plaintiff LEGISLATION CITED: Conveyancing Act 1919
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005CASES CITED: Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301
Cameron’s Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46
Chris Poulson Insurance Agencies Pty Ltd v National Mutual Life Association of Australasia Ltd [1998] TASSC 86
Deepsilver Pty Ltd v Aquatherm Australia Pty Ltd [2007] WASCA 171
Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191
Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972
Erolen v Baulkham Hills Shire Council (1993) 10 ACSR 441
Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd & Ors (1992) 8 ACSR 405
Harpur v Ariadne Australia Ltd [1984] 2 Qd R 523; (1984) 8 ACLR 835
Heller Factors Pty Ltd v John Arnold’s Surf Shop Pty Ltd (1979) ACLC 32,446
Instyle Contract Textiles Pty Limited v Good Environmental Choice Services Pty Ltd [2009] FCA 1422; (2009) 181 FCR 360
Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306
Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 at 623-624
J & M O’Brien Enterprises Pty Ltd v The Shell Company of Australia Ltd (No 2) (1983) 70 FLR 261
Jazabas Pty Ltd v Haddad & Ors [2007] NSWCA 291; 65 ACSR 276
KP Cable Investments Pty Limited v Meltglow Pty Limited [1995] FCA 76; 56 FCR 189
Payne v Parker [1976] 1 NSWLR 191
Pioneer Park Pty Limited (In Liq) & Ors v ANZ Banking Corporation [2007] NSWCA 344
Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480
Winnote Pty Ltd (In liq) v Page [2005] NSWCA 362 (2005) 64 NSWLR 244
PARTIES: Prynew Pty Limited (First Appellant)
Peter Tsu (Second Appellant)
Ferdinand Nemeth (First Respondent)
Virginia…
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Details
- AGLC
- Prynew Pty Ltd v Nemeth [2010] NSWCA 94
- Case
- [2010] NSWCA 94
- Decision Date
CaseChat Overview and Summary
Prynew Pty Ltd (Prynew) and Mr Nemeth appealed a decision of the Supreme Court of New South Wales. The respondent, Piling Pty Ltd (Piling), sought security for its costs of the appeal. The central issue was whether Piling, an impecunious company, should be required to provide security for Prynew's costs, and conversely, whether Prynew, also impecunious, should be required to provide security for Piling's costs.
The Court of Appeal was required to determine whether Piling, as a respondent to the appeal, should be ordered to provide security for Prynew's costs. It also had to consider whether Prynew, as an appellant, should be ordered to provide security for Piling's costs, particularly in light of the impecuniosity of both parties and the nature of the claims being advanced. The court also considered the effect of an undertaking offered by Mr Nemeth to be responsible for Piling's costs.
Beazley JA applied the principles governing applications for security for costs under section 1335 of the Corporations Act 2001 (Cth). Her Honour noted that impecuniosity alone is not determinative, but it is a significant factor. The court considered the relative strengths of the parties' cases and the potential for recovery of costs. The undertaking by Mr Nemeth was found to be insufficient to meet the threshold for security for costs, given his own impecuniosity. The court also considered that the case of the individual co-plaintiff, Mr Nemeth, was not co-extensive with the case of the corporate plaintiff, Prynew.
The Court of Appeal ordered that Prynew provide security for Piling's costs of the appeal in the sum of $50,000 by 28 May 2010, by way of bank guarantee. Prynew was also ordered to pay Piling's costs of the notice of motion. The matter was stood over for further directions to 1 June 2010.
The Court of Appeal was required to determine whether Piling, as a respondent to the appeal, should be ordered to provide security for Prynew's costs. It also had to consider whether Prynew, as an appellant, should be ordered to provide security for Piling's costs, particularly in light of the impecuniosity of both parties and the nature of the claims being advanced. The court also considered the effect of an undertaking offered by Mr Nemeth to be responsible for Piling's costs.
Beazley JA applied the principles governing applications for security for costs under section 1335 of the Corporations Act 2001 (Cth). Her Honour noted that impecuniosity alone is not determinative, but it is a significant factor. The court considered the relative strengths of the parties' cases and the potential for recovery of costs. The undertaking by Mr Nemeth was found to be insufficient to meet the threshold for security for costs, given his own impecuniosity. The court also considered that the case of the individual co-plaintiff, Mr Nemeth, was not co-extensive with the case of the corporate plaintiff, Prynew.
The Court of Appeal ordered that Prynew provide security for Piling's costs of the appeal in the sum of $50,000 by 28 May 2010, by way of bank guarantee. Prynew was also ordered to pay Piling's costs of the notice of motion. The matter was stood over for further directions to 1 June 2010.
Orders
Orders of the court
1. Prynew to provide security for Piling’s costs of the appeal in the sum of $50,000 by 28 May 2010;
2. Such security to be provided by way of bank guarantee;
3. Prynew to pay Piling’s costs of the notice of motion;
4. The matter involving all parties be stood over for further directions to 1 June 2010.
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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