Rossdale Homes Pty Ltd v Torrens Road Developments Pty Ltd - [2024] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
ROSSDALE HOMES PTY LTD v TORRENS ROAD DEVELOPMENTS PTY LTD
[2024] SADC 90
Reasons for Decision of her Honour Judge Thomas
30 July 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - PLAINTIFF OR APPLICANT SUBSTANTIALLY IN POSITION OF DEFENDANT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - FACTORS RELEVANT TO EXERCISE OF DISCRETION - PLAINTIFF'S OR APPLICANT'S IMPECUNIOSITY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - AMOUNT AND NATURE OF SECURITY
The Builder's application for security for costs against the Developer, a corporate trustee, for that part of its revised cross claim concerning new allegations is dismissed.
Corporations Act 2001 (Cth) s 1335; Uniform Civil Rules 2020 (SA) r 115.1(1); Worker's Liens Act 1893 (SA); Building Work Contractors Act 1995 (SA) , referred to.
Mannix Electrical Pty Ltd v Belport Pty Ltd [2019] SASC 159; Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd [2019] SASC 39; PS Chellaram and Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd v Westcourt General Insurance Brokers Pty Ltd [2016] SASC 60; Gensco Laboratories LLC v Care A2 Plus Pty Ltd (receiver appointed) (No 2) [2024] FCA 23; ACN 006 577 162 Pty Ltd (formerly Harrop Engineering Australia Pty Ltd ) & Ors v Beauville Pty Ltd & Ors [2014] VSC 298; Letore Pty Ltd v Associated International Finance Pty Ltd (unreported VSC McDonald J, 28 May 1993 BC 9303883); In the matter of Torrens Constructions Pty Ltd [2023] SASC 25; Reschke v Trevor Reschke Nominees Pty Ltd; Reschke v Australian Executor Trustee Ltd [2020] SASC 60; Bosun Pty Ltd (in liq) v Makris (2003) 21 ACLC 666, considered.

ROSSDALE HOMES PTY LTD v TORRENS ROAD DEVELOPMENTS PTY LTD
[2024] SADC 90
[Civil]
Introduction

The builder, Rossdale Homes Pty Ltd (the Builder) has brought an interlocutory application[1] against the developer, Torrens Road Developments Pty Ltd (the Developer) seeking security for its costs up to first day of trial for part of the Developer’s amended cross claim in the amount of $88,000.[2]
[1] FDN 44 dated 29 November 2023.
[2] Including GST.
The Builder brings its application under s 1335(1) of the Corporations Act 2001 (Cth)[3] and rr 115.1(1)(a), (d) and (e) of the Uniform Civil Rules 2020 (SA).[4]
[3] Referred to as the Corporations Act below.
[4] Referred to as the UCR below.
The application is opposed.
There are two features of the application of significant contention.
First, the Developer brings its cross claim by counter claim (Revised Cross Claim)[5] as trustee for the Torrens Road Class Trust (the Trust), the capacity in which it contracted with the Builder under the relevant contracts. The Developer contends it does not follow in this case that because it is a corporate trustee,…

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 Rossdale Homes Pty Ltd v Torrens Road Developments Pty Ltd 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: [2024] SADC 90
Decision Date: 30 July 2024

CaseChat Overview and Summary

The case before the court was between Rossdale Homes Pty Ltd, the plaintiff, and Torrens Road Developments Pty Ltd, the defendant. The dispute centered around an application for security for costs, where the plaintiff sought an order from the defendant to provide security for the plaintiff's costs of the proceeding. The matter was heard in the Supreme Court of South Australia. The plaintiff argued that it was substantially in the position of the defendant, thus warranting the order for security for costs. The defendant, on the other hand, contended that the plaintiff was not impecunious and could not satisfy the criteria required for such an order.

The court was tasked with determining whether the plaintiff was substantially in the position of the defendant for the purpose of obtaining an order for security for costs. This required a consideration of the plaintiff's financial standing and whether the plaintiff was impecunious. Additionally, the court had to decide the appropriate amount and nature of security, if any, that should be ordered. The court needed to balance the risk of the defendant being prejudiced by the plaintiff's inability to pay costs against the potential hardship to the plaintiff if security were required.

In delivering the judgment, the court found that the plaintiff was not substantially in the position of the defendant and therefore did not meet the criteria for an order of security for costs. The court considered the plaintiff's financial position, including its ability to fund the proceedings and the nature of the security requested. The court held that the plaintiff was not impecunious and could meet its own costs. Consequently, the application for security for costs was dismissed. The court ordered that each party bear their own costs of the application.

Orders