Yto Construction Pty Ltd (in liq) v Ganghui Pty Ltd

[2024] NSWCA 44

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

YTO Construction Pty Ltd (in liq) v Ganghui Pty Ltd [2024] NSWCA 44

Hearing dates:

On the papers

Decision date:

29 February 2024

Before:

Leeming JA

Decision:

Appeal dismissed with costs.

Catchwords:

PROCEDURE – security for costs – non-compliance with orders to provide security – company placed into liquidation – appeal dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 46(1)(b)

Uniform Civil Procedure Rules 2005 (NSW), r 51.50(2A)

Category:

Principal judgment

Parties:

YTO Construction Pty Ltd (in liq) (Appellant)
Ganghui Pty Ltd (First Respondent)
Fu Ming Guo (Second Respondent)

Representation:

Solicitors:
Hall Chadwick, Chartered Accountant (Liquidator)
Tom Howard Legal (Respondents)

File Number(s):

2023/236125

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Technology and Construction List

Citation:

[2023] NSWSC 729

Date of Decision:

28 June 2023

Before:

Stevenson J

File Number(s):

2020/220429

JUDGMENT

1. LEEMING JA: This appeal is listed for hearing, over two days, on 4 and 5 March 2024. It had previously been set down for hearing on 7 and 8 February 2024. That hearing was vacated, on short notice, following the filing on 5 February 2024 of a notice of removal of the appellant’s solicitor. The following orders were made by consent on 6 February 2024 following a hearing before me:

1. Order that the hearing of this appeal listed for 7 and 8 February 2024 be vacated, and instead be listed for hearing on 4 and 5 March 2024.

2. Order that the appellant pay the respondents’ costs of its application to vacate the appeal and costs thrown away by reason of the vacation of the appeal.

3. Direct the appellant to pay within 21 days of today an additional $25,000 by way of security for the respondents’ costs of the appeal.

4. Direct the appellant to file and serve within 21 days of today a note of any grounds of appeal no longer pressed or proposed amended notice of appeal and submissions in support of any proposed new grounds of appeal.

5. Liberty to apply to the Associate of Leeming JA on 2 days’ notice.

2. There was no compliance with the directions in order 3 to supply additional security or in order 4 to supply a note concerning the notice of appeal. On 28 February, my Associate wrote to the parties and the counsel who had been retained to appear on 6 February, seeking an update on the position. That elicited the response from Mr Joseph Coorey, of Hall Chadwick, that a liquidator, Mr Steven Gladman, had been appointed to the appellant on 27 February.

3. The solicitor for the respondents advised Mr Coorey of the non-compliance with the orders for security, and the fact that the appeal was listed to be heard on 4 and 5 March 2024.

4. Earlier today, Mr Coorey advised the Court that “The Liquidator will not be paying the additional security for costs and does not object to the appeal being dismissed”.

5. It was made clear on 6 February 2024 that if the additional security were not provided, the Court would be receptive to the respondents renewing their application for the dismissal of the appeal.

6. Rule 51.50(2A) of the Uniform Civil Procedure Rules 2005 (NSW) provides that if an appellant does not comply with an order to provide security for the costs of appeal, the Court may order the appellant’s appeal be dismissed. Section 46(1)(b) of the Supreme Court Act 1970 (NSW) empowers a single Judge of Appeal to exercise the powers of the Court of Appeal, inter alia, to dismiss an appeal “for want or prosecution or other cause specified in the rules”.

7. This is an appropriate case for the exercise of that power. The position now is that there is (1) an ongoing breach of the consensual regime for security for costs, (2) a probability that the respondents if successful will be unable to recover costs above the security which has already been provided, (3) no suggestion that the anyone has instructions, or will have instructions, to prosecute the appeal, and (4) no opposition from the liquidator to the dismissal of the appeal.

8. The appeal should be dismissed. There is no reason to depart from the usual rule that costs follow the event.

9. Accordingly, the Court orders that the appeal is dismissed with costs.

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Decision last updated: 29 February 2024