Randall Pty Ltd v Willoughby City Council

[2015] NSWCA 205

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 205

Hearing dates:

13 July 2015

Decision date:

13 July 2015

Before:

Basten JA

Decision:

1.   Dismiss the respondent’s motion of 16 June 2015.

 

2.   Direct that the costs of the motion be costs in the proceedings.

 

3.   Direct that the applicants file and serve a further amended summons by 20 July 2015 (without marking the changes).

 

4.   Direct that the applicants file and serve written submissions in support of the summons by 27 July 2015.

 

5.   Direct that the respondent file and serve written submissions in response by 3 August 2015.

 6.   Note that the summons is listed for hearing on 20 August 2015.

Catchwords:

PROCEDURE – security for costs – summons in supervisory jurisdiction – corporate and individual applicants – half day hearing to occur in one month – limited evidence of impecuniosity of corporate applicant – no evidence of factors under UCPR r 42.21 – no evidence of likely costs

Legislation Cited:

Corporations Act 2001 (Cth), s 1335
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 42.21, 51.50, 59.4

Cases Cited:

Jazabas Pty Ltd v Haddad [2007] NSWCA 291; 65 ACSR 276

Category:

Procedural and other rulings

Parties:

Tonab Investments Pty Ltd (First Applicant)
Maria Bechara (Second Applicant)
Optima Developments Pty Ltd (Respondent)

Representation:

Counsel:
Mr A E Maroya (Applicants)

  Solicitors:
Maria Bechara (Applicants)
Mark Gallego (Respondent)

File Number(s):

2015/14017

 Decision under appeal 

Court or tribunal:

District Court

Citation:

Tonab Investments Pty Ltd & Bechara v Optima Developments Pty Ltd [2014] NSWDC 241

Date of Decision:

19 December 2014

Before:

Levy SC DCJ

File Number(s):

2014/7719

Decision under review

Judgment

1. BASTEN JA: This matter is an application for review of a decision of the District Court, being a judgment delivered by Judge Levy on an appeal from the Local Court, that judgment being delivered on 9 January 2014. The amount originally in issue in the Local Court was a claim for approximately $8,700, being fees claimed for town planning services provided by the respondent to the applicants.

2. Judgment was eventually given in the Local Court for an amount somewhat in excess of that because interest was added and for an amount of costs. There were further procedural steps taken in the District Court which it is not necessary to consider for present purposes. I assume, nevertheless, that both the applicants in this Court are jointly and severally liable for the debt payable in accordance with the judgment in the Local Court.

3. The proceedings before this Court commenced as an application for leave to appeal; however, the applicants now accept that there is no right of appeal and that the summons that was filed seeking leave to appeal was misconceived. That summons has now been amended to provide for an application for judicial review of the District Court decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW).

4. The amended summons has some difficulties with it, to which reference has been made in the course of argument and to which I will refer shortly.

5. The respondent has sought, first, to dismiss the summons and, secondly, an order for security for costs. Nothing has been put in support of the contention that the summons should be dismissed and I do not propose to take that step, although there are directions I will give with respect to the amendment of the summons.

6. In the alternative an order is sought for security. In order to obtain an order for security for costs in relation to an individual applicant in this Court it is necessary to comply with the general requirements in relation to people bringing proceedings in the original jurisdiction of the Supreme Court. [1] It is rare that security would be ordered in the absence of strong evidence of impecuniosity on behalf of the individual and no doubt establishment of other relevant considerations. [2] Nevertheless, this not being an appeal, special circumstances are not required. [3]

   1. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 42.21.

   2. Impecuniosity alone is not sufficient for a non-corporate plaintiff: cf UCPR, r 42.21(1)(c); Jazabas Pty Ltd v Haddad [2007] NSWCA 291; 65 ACSR 276 at [12].

   3. Cf UCPR, r 51.50.

7. In relation to the corporate applicant, s 1335 of the Corporations Act 2001 (Cth) is engaged and it is open to this Court to make an order requiring that security be given. However, in circumstances where there is both a corporate and an individual applicant, little purpose would be achieved by making an order for security for costs in respect of the corporate applicant (with no doubt an accompanying stay until the security is provided) if the matter is to go ahead anyway in relation to the individual applicant.

8. It is also necessary to establish that there are reasons to doubt that the corporate applicant could pay the debt involved in the proceedings. That debt, even with interest, is an amount a little in excess of $10,000. The evidence which is before the Court is that the corporate applicant sold a property and the proceeds of sale were insufficient to meet the mortgage payable on the property. It may well be that the corporate applicant is unable to pay the debt of $10,000 and no doubt the costs which will be payable by the applicant if unsuccessful in this Court. It is said that the order for security should be in an amount of $100,000.

9. This is a matter in which the hearing of the application has been listed for 20 August 2015; that is, in approximately one month’s time. And, I should add, the matter has been listed on the basis that the hearing will be completed in half a day. It is simply not conceivable that an amount of $100,000 could be incurred in the forthcoming period before the matter is disposed of by a final hearing. The purpose for ordering security for costs is not to give some form of blanket security for any amounts which may or may not have become payable in the past; in any event no estimate has been given of what costs are to be incurred in the future.

10. For a combination of those reasons I do not propose to exercise the power under the Corporations Act to order the corporate applicant, to provide security. I also do not propose to order that the individual applicant provide security. It follows that there will be no stay of the proceedings and the matter will proceed to a hearing on 20 August 2015.

11. To that end it is desirable to give directions with respect to the form of the summons. The summons is not presently in an appropriate form. First, and of no great importance, it fails to comply with the rules as to the description of the parties: it refers to “plaintiffs” and “defendant” and not “applicants” and “respondent”. Secondly, and more importantly, it does not join the District Court of New South Wales which is a necessary party in proceedings in the supervisory jurisdiction of this Court. Thirdly, it does not comply with the requirement that the grounds on which relief is sought be identified with specificity, pursuant to the UCPR, r 59.4(c).

12. I propose therefore to grant leave to the applicants to file a further amended summons, these deficiencies being accepted by counsel appearing for them today. It will be necessary for there to be further submissions filed which identify appropriate errors on the part of the District Court, as it is the judgment of the District Court and the orders therein which are the subject of review.

13. Accordingly I make the following orders:

1.   Dismiss the respondent’s motion of 16 June 2015.

2.   Direct that the costs of the motion be costs in the proceedings.

3.   Direct that the applicants file and serve a further amended summons by 20 July 2015 (without marking the changes).

4.   Direct that the applicants file and serve written submissions in support of the summons by 27 July 2015.

5.   Direct that the respondent file and serve written submissions in response by 3 August 2015.

6.   Note that the summons is listed for hearing on 20 August 2015.

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Endnotes

Amendments

16 July 2015 - Citation of section on Coversheet

16 July 2015 - Amending s 133(5) to now read s 1335 at [7].

Decision last updated: 16 July 2015