Waterproofing Technologies Pty Limited v Perri (No 5)

FEDERAL COURT OF AUSTRALIA

Waterproofing Technologies Pty Limited v Perri (No 5) [2025] FCA 986

File number(s):

NSD 660 of 2021

Judgment of:

MOORE J

Date of judgment:

20 August 2025

Catchwords:

PRACTICE AND PROCEDURE – security for costs – whether risk that applicants will be unable to meet an order for costs – where first applicant has substantial assets but second applicant does not – whether first applicant should provide an undertaking – where undertaking proffered by Group Managing Director apparently on behalf of another entity – proffering of undertaking not found to constitute an admission – where insolvency of certain group companies insufficient to call into question solvency of other group companies without further evidence – where undertakings need to be perfected – where the applicants’ written submissions require further explanation in light of potentially misleading statements as to the true financial position of the applicants     

Cases cited:

Big Review TV Ltd (in liq) v FC Securities Pty Ltd (2025) FCA 222

Waterproofing Technologies Pty Limited v Perri (No 3) [2025] FCA 934

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

26

Date of hearing:

1 May 2025

Counsel for the Applicants:

Mr J Simpkins

Solicitor for the Applicants:

McCabes Lawyers

Counsel for the First, Second, Third, Sixth, Eighth and Eleventh Respondents:

Mr S Horgan KC and Mr A Ford

Solicitor for the First, Second, Third, Sixth, Eighth and Eleventh Respondents:

Greenwich Legal

Counsel for the Ninth Respondent:

Mr L Magowan

Solicitor for the Ninth Respondent:

Schembri + McCluskys

ORDERS

NSD 660 of 2021

BETWEEN:

WATERPROOFING TECHNOLOGIES PTY LTD ACN 152 481 215

First Applicant

POLYSEAL WATERPROOFING VICTORIA PTY LTD ACN 086 669 650

Second Applicant

AND:

LUIGI PERRI

First Respondent

CCBM BARE PTY LTD ACN 162 850 731

Second Respondent

MILLENIUM HOMES PTY LTD ACN 096 371 667 (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	MOORE J
DATE OF ORDER:	20 AUGUST 2025

THE COURT ORDERS THAT:

1.The proceedings be listed for a case management hearing on 26 August 2025 at 9:30 am for the making of any orders consequent upon these reasons for judgment.

2.By 4:00 pm on 22 August 2025, the applicants inform the respondents and the Court whether the undertakings contemplated in these reasons for judgment will be provided, and (if not) indicate the applicants’ position on the question of security for costs in light of these reasons for judgment.

3.By 4:00 pm on 22 August 2025, the applicants file and serve an affidavit explaining the circumstances in which the submissions in paragraphs [57] and [59] of the applicants’ written submissions dated 28 April 2025 came to be made.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOORE J:

1. This is the third judgment dealing with interlocutory applications heard by me at an omnibus hearing. It should be read with Waterproofing Technologies Pty Limited v…