Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Tomanovic Multiown Pty Ltd v Interlux Projects Pty Ltd [2022] NSWCA 38 Hearing dates: 16 March 2022 Date of orders: 16 March 2022 Decision date: 16 March 2022 Before: Basten JA Decision: (1) Order that the proceedings on the appeal be stayed until the appellant provides security for the legal costs of the first, second and third respondents in an amount of $31,500, such security to be in the form of a bank guarantee to be lodged with the Registrar, or the payment into court of that sum by way of security for the costs of the appeal.
(2) Direct that the costs of the motion be the costs of the first, second and third respondents in the appeal.
Catchwords: CIVIL PROCEDURE – appeal – security for costs – stay of proceedings pending provision of security – jurisdictional requirement – criteria relevant to exercise of power – corporate trustee appellant – unpaid gross sum costs order – stay not sought
Legislation Cited: Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Cases Cited: Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93
Pioneer Park Pty Ltd (In liq) v Australia and New Zealand Banking Group Ltd [2007] NSWCA 344
Category: Procedural rulings Parties: Tomanovic Multiown Pty Ltd (Appellant)
Interlux Projects Pty Ltd (First Respondent)
Daniel Mudri (Second Respondent)
Jessica Lauren Mudri (Third Respondent)
Miroslav Mudri (Fourth Respondent)Representation: Counsel:
Solicitors:
Mr P Wallis (Appellant)
Mr E Ball / Ms C Nguyen (First to third Respondents)
Pryor Tzannes & Wallis (Appellant)
Stephen Noss Lawyers (Respondents)
File Number(s): 2021/240904 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity Division
- Citation:
- Date of Decision:
- 11 March 2021; 29 July 2021
- Before:
- Emmett AJ
- File Number(s):
- 2018/246780
Judgment
-
BASTEN JA: The appellant, Tomanovic Multiown Pty Ltd (“Multiown”), was the unsuccessful plaintiff in proceedings in the Equity Division. The proceedings, seeking to recover repayment of a loan, were dismissed against each of four defendants on the basis that the loan agreement was unjust within the meaning of the Contracts Review Act 1980 (NSW) or, with respect to the involvement of the company, the result of undue influence on the individuals who controlled the company. The principal judgment was delivered by Emmett AJ on 11 March 2021. [1]
-
Having foreshadowed the basis of relief in favour of the first three defendants, the Court provided an opportunity for the plaintiff and the fourth defendant to make further submissions. No further submissions providing an alternative basis upon which the claim against the fourth defendant could be maintained were made. In a second judgment, delivered on 29 July 2021, the…
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- Case
- [2022] NSWCA 38
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the appellant, a corporate trustee, should be ordered to provide security for the costs of the respondents in the appeal. This involved considering the appellant's status as a corporate trustee, the existence of an unpaid gross sum costs order from previous proceedings, and the absence of any application by the appellant for a stay of proceedings pending the provision of security. The court had to assess the criteria relevant to the exercise of its power to order security for costs in these circumstances.
The court reasoned that the appellant, as a corporate trustee, was a proper subject for a security for costs order, particularly given the existence of an outstanding costs order against it. The court applied the principles governing applications for security for costs, which generally require the applicant to demonstrate a real risk that the respondent will be unable to recover their costs if an order is not made. The court found that the circumstances warranted the imposition of security.
The court ordered that the proceedings on the appeal be stayed until the appellant provided security for the legal costs of the respondents in the amount of $31,500. This security was to be in the form of a bank guarantee lodged with the Registrar or payment into court. The costs of the motion were also ordered to be the costs of the respondents in the appeal.
Orders
Orders of the court
(1) Order that the proceedings on the appeal be stayed until the appellant provides security for the legal costs of the first, second and third respondents in an amount of $31,500, such security to be in the form of a bank guarantee to be lodged with the Registrar, or the payment into court of that sum by way of security for the costs of the appeal.
(2) Direct that the costs of the motion be the costs of the first, second and third respondents in the appeal.
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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