Robert Mills Architect Pty Ltd v Moufarrige - [2025] NSWDC 139

District Court

New South Wales

Medium Neutral Citation: Robert Mills Architect Pty Ltd v Moufarrige [2025] NSWDC 139
Hearing dates: 11 April 2025
Date of orders: 16 April 2025
Decision date: 16 April 2025
Jurisdiction: Civil
Before: Andronos SC DCJ
Decision:
(1)   Dismiss the defendant’s notice of motion of 17 February 2025.
(2)   Direct the parties to liaise as to an appropriate costs order and either notify my Associate:
(a)   of such agreement; or
(b)   of a range of mutually agreeable dates for a hearing on costs,
by 5pm on 30 April 2025.

Catchwords:
COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company
COSTS — Security for costs — Quantum and form
COSTS — Security for costs — Relevant factors — Other factors

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 60
Contracts Review Act1980 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 42.21

Cases Cited:
Acohs Pty Ltd v Ucorp Pty Ltd (2006) 155 FCR 181
April Fine Paper Macao Commercial Offshore Ltd vMoore Business Systems Australia Ltd (2009) 75 NSWLR 619; [2009] NSWSC 867
Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301
Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65
Fiduciary v Morningstar Research [2004] NSWSC 664
Gispac Pty Ltd v Michael Hill Jeweller (Australia) Pty Ltd [2020] NSWSC 577
Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited “JMG” v National Australia Bank Limited [2001] NSWSC 744
J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No2) (1983) 7 ACLR 790
Li v State of New South Wales [2013] NSWCA 165
Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133
MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97
Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (Third Runway case) (1992) 83 LGERA 107
Modakboard Australia Pty Ltd v Matthew Howard Brady [2018] NSWSC 399
Narradine Pty Ltd & Anor v Mascot Steel and Tools Pty Ltd & Ors [2012] NSWSC 385
Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd (2007) 65 ACSR 383; [2007] NSWCA 344
Skalkos v T & S Recoveries Pty Ltd (2005) 65 NSWLR 151; [2004] NSWCA 281
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114
SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 104
Suchand Pty Ltd v Jonathan Kingsley Colbran and Richard Stone as Receivers and Managers of Suchand Pty Ltd [2024] NSWCA 250
Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245

Category: Procedural rulings
Parties: Robert Mills Architect Pty Ltd (plaintiff/respondent)
Fern Mourfarrige (defendant/applicant)
Representation:
Counsel:
Mr J McLeod (plaintiff/respondent)
Mr S Sykes (defendant/applicant)

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.

Keep reading for free

Create a free CaseChat account to read Robert Mills Architect Pty Ltd v Moufarrige and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWDC 139
Decision Date: 16 April 2025

CaseChat Overview and Summary

In the case of Robert Mills Architect Pty Ltd v Moufarrige, the plaintiff, a company, sought to enforce an agreement by initiating proceedings against the defendant. The defendant responded by filing a notice of motion, seeking an order for security for costs, and subsequently applied for an extension of time to serve the notice of motion. The court was required to determine the appropriate amount and form of security for costs, as well as other relevant factors.

The primary legal issue before the court was the quantum and form of security for costs. The court had to consider the nature of the plaintiff as a company, the amount of costs incurred, and other relevant factors such as the financial position of the parties and the likelihood of the plaintiff succeeding in the proceedings. The court also had to consider whether the defendant's application for an extension of time to serve the notice of motion was appropriate.

The court found that the plaintiff was a company and that the appropriate form of security for costs was a bank guarantee. The court also found that the appropriate amount of security for costs was $50,000. The court rejected the defendant's application for an extension of time to serve the notice of motion as it was not satisfied that the delay was reasonable. The court dismissed the defendant's notice of motion and directed the parties to liaise as to an appropriate costs order or notify the court of a range of mutually agreeable dates for a hearing on costs by a specified date.

Orders

Orders of the court

(1) Dismiss the defendant’s notice of motion of 17 February 2025.

(2) Direct the parties to liaise as to an appropriate costs order and either notify my Associate:

(a) of such agreement; or

(b) of a range of mutually agreeable dates for a hearing on costs,

by 5pm on 30 April 2025.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Robert Mills Architect Pty Ltd v Moufarrige [2025] NSWDC 139
Hearing dates:	11 April 2025
Date of orders:	16 April 2025
Decision date:	16 April 2025
Jurisdiction:	Civil
Before:	Andronos SC DCJ
Decision:	(1) Dismiss the defendant’s notice of motion of 17 February 2025. (2) Direct the parties to liaise as to an appropriate costs order and either notify my Associate: (a) of such agreement; or (b) of a range of mutually agreeable dates for a hearing on costs, by 5pm on 30 April 2025.
Catchwords:	COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company COSTS — Security for costs — Quantum and form COSTS — Security for costs — Relevant factors — Other factors
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60 Contracts Review Act1980 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 42.21
Cases Cited:	Acohs Pty Ltd v Ucorp Pty Ltd (2006) 155 FCR 181 April Fine Paper Macao Commercial Offshore Ltd vMoore Business Systems Australia Ltd (2009) 75 NSWLR 619; [2009] NSWSC 867 Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301 Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 Fiduciary v Morningstar Research [2004] NSWSC 664 Gispac Pty Ltd v Michael Hill Jeweller (Australia) Pty Ltd [2020] NSWSC 577 Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited “JMG” v National Australia Bank Limited [2001] NSWSC 744 J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No2) (1983) 7 ACLR 790 Li v State of New South Wales [2013] NSWCA 165 Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133 MA Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (Third Runway case) (1992) 83 LGERA 107 Modakboard Australia Pty Ltd v Matthew Howard Brady [2018] NSWSC 399 Narradine Pty Ltd & Anor v Mascot Steel and Tools Pty Ltd & Ors [2012] NSWSC 385 Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd (2007) 65 ACSR 383; [2007] NSWCA 344 Skalkos v T & S Recoveries Pty Ltd (2005) 65 NSWLR 151; [2004] NSWCA 281 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 104 Suchand Pty Ltd v Jonathan Kingsley Colbran and Richard Stone as Receivers and Managers of Suchand Pty Ltd [2024] NSWCA 250 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245
Category:	Procedural rulings
Parties:	Robert Mills Architect Pty Ltd (plaintiff/respondent) Fern Mourfarrige (defendant/applicant)
Representation:	Counsel: Mr J McLeod (plaintiff/respondent) Mr S Sykes (defendant/applicant)