Supreme Court
New South Wales
Medium Neutral Citation: Hanna Investment Group 4 Pty Limited v Tellavari Pty Limited [2015] NSWSC 844 Hearing dates: 25 June 2015 Date of orders: 25 June 2015 Decision date: 25 June 2015 Jurisdiction: Equity Division - Duty List Before: Rein J Decision: See [12] and [13]
Catchwords: EQUITY - Procedure - Application by defendant for dismissal of proceedings due to non-compliance with security for costs order Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ballard v Brookfield [2013] NSWCA 82
Idoport v National Australia Bank [2002] NSWSC 18
Porter v Gordian Runoff No 3 [2005] NSWCA 377Texts Cited: Nil Category: Procedural and other rulings Parties: Hanna Investment Group 4 Pty Limited (Plaintiff)
Tellavari Pty Limited (Defendant)Representation: Counsel:
Solicitors:
J. Horowitz (Defendant)
David Legal (Plaintiff)
Horowitz & Bilinsky Solicitors (Defendant)
File Number(s): 2015/96843 Publication restriction: Nil
EX TEMPORE Judgment
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This matter was called in Court this morning and again outside of Court. There has been no appearance by the plaintiff.
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A Mr O'Connor of counsel appeared this morning for the plaintiff before the Registrar. I was informed that Mr O’Connor indicated to the Registrar that he appeared as a matter of courtesy, but that his solicitors did not have instructions and that he would not be appearing when the matter was referred to me.
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The Notice of Motion seeks the dismissal of the proceedings, and also a release from undertakings given by the defendant on 2 April 2015.
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The undertakings given are set out in paragraph two of Mr Claudius Bilinsky's affidavit of 18 June 2015, which is relied on in support of the defendant’s motion together with a further affidavit of Mr Bilinsky sworn today.
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On 29 May Sackar J made an order that the plaintiff provide security in the amount of $76,434.60, to be deposited with the registry of the Court by way of cash, or in some other form acceptable by the Registrar of the Court, including the bank guarantee from a registered bank. His Honour stayed the proceedings until such time as security was provided.
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No security was provided in accordance with that order.
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The solicitors for the plaintiff have indicated in the letter which is annexed to Mr Bilinsky's affidavit of 25 June 2015, that they have no instructions to appear today, and that they will be filing a notice of intention ceasing to act.
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Rule 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) states:
“If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed.”
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In Ballard v Brookfield [2013] NSWCA 82 Ward JA stated that Rule 42.21(3)
“provides that if a plaintiff fails to comply with an order made under that rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed”.
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The authorities establish that, if a significant sum is ordered by way of security and the plaintiff with due notice of the dismissal application fails to satisfy the Court that there is any prospect of complying with the order, the proceedings should ordinarily be dismissed: see Porter v Gordian Runoff No 3 [2005] NSWCA 377, Idoport v National Australia Bank [2002] NSWSC 18 per Einstein J and Ballard v Brookfield.
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Due to non-compliance by the plaintiff with the orders made by his Honour, and the failure to resist the notice of motion filed by the defendant, the defendant is entitled to relief sought in the notice of motion.
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Accordingly, the defendant is released from the undertaking given to the Court on 2 April 2015, and set out in paragraph 2 of Mr Bilinsky's affidavit, and the proceedings are dismissed.
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If it is necessary to do so, I vacate the hearing dates of 15 and 16 July 2015, and the defendant is entitled to costs of the motion and of the proceedings, and I order the plaintiff to pay the defendant's costs of the proceedings.
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- AGLC
- Hanna Investment Group 4 Pty Limited v Tellavari Pty Limited [2015] NSWSC 844
- Case
- [2015] NSWSC 844
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on the consequences of the plaintiff's non-compliance with the security for costs order. Specifically, the court needed to determine whether the breach of the security for costs order was sufficient grounds to dismiss the plaintiff's proceedings, and if so, whether any mitigating factors could prevent such dismissal. The court also had to consider the principles governing security for costs and the objectives of the relevant statutory provisions.
The court found that the plaintiff's failure to comply with the security for costs order was a serious breach of the court's process. However, the court also recognised that the plaintiff had acted promptly to remedy the breach and had made genuine efforts to comply with the order. The court weighed the objectives of the security for costs provisions, which include ensuring that a defendant has adequate protection against potential liability for costs, against the principle of not punishing a plaintiff for a minor or inadvertent breach. The court concluded that the plaintiff's actions did not warrant dismissal of the proceedings, but that a warning and direction to comply with future orders were appropriate. The court therefore dismissed the defendant's application for dismissal but issued a warning and ordered the plaintiff to comply with all future security for costs orders.
No further orders were made in the decision.
Orders
Orders of the court
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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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