Legal Research
Cases
Treloar Constructions Pty Ltd v McMillan

Treloar Constructions Pty Ltd v McMillan

Link copied

Case Copied 4 November 2016 22 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302
Hearing dates: 17 October 2016
Decision date: 04 November 2016
Before: Beazley ACJ
Decision:
(1)   The appellant, Treloar Constructions Pty Limited, provide security for the costs of the respondent, Brian McMillan, of the appeal in a sum of $75,000, such sum to be paid into court or by way of an irrevocable bank guarantee issued by an Australian bank and realisable on an order of the Court;

(2)   The proceedings be stayed until such time as the appellant has provided security for costs in accordance with order (1);

(3)   Upon the appellant paying $225,000 into a joint controlled monies account in the names of both solicitors on the record on this appeal, the execution and enforcement, including by way of a costs assessment, of the order made on 17 March that:

(a)   the appellant, Treloar Constructions Pty Limited, pay the respondent, Brian McMillan’s costs:
(i)   on an ordinary basis up to and including 5 December 2015; and
(ii)   on an indemnity basis thereafter, as and from 6 December 2015
is stayed until 7 days after judgment is given on the appeal or until further order of the Court.
Catchwords:
PRACTICE AND PROCEDURE – costs – security for costs – application for security for costs pursuant to s 1335(1) of the Corporations Act 2001 (Cth) – security sought against appellant company – existence of credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the appeal – where company owns no property – where company has low share capital – where no financial records in evidence – security for costs ordered
PRACTICE AND PROCEDURE – stay of proceedings – application for stay of execution and enforcement of costs orders – where party entitled to costs is impecunious – existence of reasonable grounds of appeal – whether stay should be made on conditions – whether payment into trust of costs appropriate – stay granted
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685
Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241; [2000] WASCA 69
HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87
Kalifair Pty Ltd v Digi-Tech (Australia) Pty Ltd; McLean Tecnic Pty Ltd v Digi-Tech (Australia) Pty Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
KP Cable Investments Pty Ltd v Meltglow (1995) 56 FCR 189
Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93
New South Wales Bar Association v Stevens [2003] NSWCA 95
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Pioneer Park Pty Ltd v Australia and New Zealand Banking Group [2007] NSWCA 344
Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245
Category:

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 Treloar Constructions Pty Ltd v McMillan 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: [2016] NSWCA 302
Decision Date: 04 November 2016

CaseChat Overview and Summary

In *Treloar Constructions Pty Ltd v McMillan*, the appellant company sought to appeal a decision, and the respondent applied for security for costs of the appeal. The respondent also sought a stay of execution and enforcement of existing costs orders made against the appellant.

The primary legal issues before the Court were whether there was reason to believe the appellant company would be unable to pay the costs of the appeal, thereby justifying an order for security for costs under section 1335(1) of the *Corporations Act 2001* (Cth), and whether a stay of execution of the costs orders should be granted, and if so, on what conditions.

The Court reasoned that the appellant's lack of property, low share capital, and absence of financial records in evidence supported the existence of credible testimony that the company might be unable to pay the costs of the appeal. Consequently, the Court ordered the appellant to provide security for the respondent's costs of the appeal in the sum of $75,000, either by payment into court or an irrevocable bank guarantee. Furthermore, the Court granted a stay of execution and enforcement of the existing costs orders, conditional upon the appellant paying $225,000 into a joint controlled monies account, until seven days after judgment on the appeal or further order.

Orders

Orders of the court

(1) The appellant, Treloar Constructions Pty Limited, provide security for the costs of the respondent, Brian McMillan, of the appeal in a sum of $75,000, such sum to be paid into court or by way of an irrevocable bank guarantee issued by an Australian bank and realisable on an order of the Court;

(2) The proceedings be stayed until such time as the appellant has provided security for costs in accordance with order (1);

(3) Upon the appellant paying $225,000 into a joint controlled monies account in the names of both solicitors on the record on this appeal, the execution and enforcement, including by way of a costs assessment, of the order made on 17 March that:

(a) the appellant, Treloar Constructions Pty Limited, pay the respondent, Brian McMillan’s costs:

(i) on an ordinary basis up to and including 5 December 2015; and

(ii) on an indemnity basis thereafter, as and from 6 December 2015

is stayed until 7 days after judgment is given on the appeal or until further order of the Court.

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:	Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302
Hearing dates:	17 October 2016
Decision date:	04 November 2016
Before:	Beazley ACJ
Decision:	(1) The appellant, Treloar Constructions Pty Limited, provide security for the costs of the respondent, Brian McMillan, of the appeal in a sum of $75,000, such sum to be paid into court or by way of an irrevocable bank guarantee issued by an Australian bank and realisable on an order of the Court; (2) The proceedings be stayed until such time as the appellant has provided security for costs in accordance with order (1); (3) Upon the appellant paying $225,000 into a joint controlled monies account in the names of both solicitors on the record on this appeal, the execution and enforcement, including by way of a costs assessment, of the order made on 17 March that: (a) the appellant, Treloar Constructions Pty Limited, pay the respondent, Brian McMillan’s costs: (i) on an ordinary basis up to and including 5 December 2015; and (ii) on an indemnity basis thereafter, as and from 6 December 2015 is stayed until 7 days after judgment is given on the appeal or until further order of the Court.
Catchwords:	PRACTICE AND PROCEDURE – costs – security for costs – application for security for costs pursuant to s 1335(1) of the Corporations Act 2001 (Cth) – security sought against appellant company – existence of credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the appeal – where company owns no property – where company has low share capital – where no financial records in evidence – security for costs ordered PRACTICE AND PROCEDURE – stay of proceedings – application for stay of execution and enforcement of costs orders – where party entitled to costs is impecunious – existence of reasonable grounds of appeal – whether stay should be made on conditions – whether payment into trust of costs appropriate – stay granted
Legislation Cited:	Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241; [2000] WASCA 69 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87 Kalifair Pty Ltd v Digi-Tech (Australia) Pty Ltd; McLean Tecnic Pty Ltd v Digi-Tech (Australia) Pty Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 KP Cable Investments Pty Ltd v Meltglow (1995) 56 FCR 189 Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93 New South Wales Bar Association v Stevens [2003] NSWCA 95 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 Pioneer Park Pty Ltd v Australia and New Zealand Banking Group [2007] NSWCA 344 Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245
Category: