Melunu Pty Limited v Claron Constructions Pty Limited & Ors [2004] NSWSC 1064

Melunu Pty Limited v Claron Constructions Pty Limited & Ors [2004] NSWSC 1064

The summons failed to plead facts capable of supporting the claims in tort, rectification or variation under the Contracts Review Act, or the accessorial allegations, so those parts should be struck out with liberty to amend. Further security was warranted because Melunu conceded there was reason to believe it could not meet an adverse costs order, the litigation had expanded significantly beyond the circumstances of the earlier $35,000 security order, delay was not established as a discretionary bar, and the evidence did not show that the applicants caused Melunu's impecuniosity or that further security would stultify the proceedings.

Jurisdiction
Australia
Judgment Date
16 November 2004
Procedural Posture
Equity Division Technology and Construction List Proceeding Arising From a Residential Building Design and Construction Contract / Interlocutory Notice of Motion for Further Security for Costs, Striking Out Parts of the Amended Summons, and Particulars
Outcome
Parts of the summons were struck out and Melunu Pty Limited was ordered to provide further security for costs.
Legal Topics
['further Security for Costs' 'strike Out of Pleadings' 'particulars' 'misleading or Deceptive Conduct' 'contracts Review Act Claim' 'impecuniosity and Stultification' 'delay in Security for Costs Application']
['civil Procedure' 'security for Costs' 'building and Construction' 'contract' 'corporations'] ['further Security for Costs' 'strike Out of Pleadings' 'particulars' 'misleading or Deceptive Conduct' 'contracts Review Act Claim' 'impecuniosity and Stultification' 'delay in Security for Costs Application']

Case Brief

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Procedural Posture

Equity Division Technology and Construction List Proceeding Arising From a Residential Building Design and Construction Contract / Interlocutory Notice of Motion for Further Security for Costs, Striking Out Parts of the Amended Summons, and Particulars

Legal Issues

  1. 1 ['Whether parts of the summons alleging tort, rectification or variation under the Contracts Review Act 1980, and accessorial liability should be struck out for failure to plead supporting facts.' 'Whether Melunu Pty Limited should be ordered to provide further security for costs under Pt 53 r 2(1)(b) and (e) and s 1335 of the Corporations Act.' 'Whether alleged delay in seeking further security justified refusing the application.' "Whether the applicants' conduct caused or contributed to Melunu's impecuniosity so as to make an order for security unjust." 'Whether an order for further security would stultify the proceedings.']

Ratio Decidendi

The summons failed to plead facts capable of supporting the claims in tort, rectification or variation under the Contracts Review Act, or the accessorial allegations, so those parts should be struck out with liberty to amend. Further security was warranted because Melunu conceded there was reason to believe it could not meet an adverse costs order, the litigation had expanded significantly beyond the circumstances of the earlier $35,000 security order, delay was not established as a discretionary bar, and the evidence did not show that the applicants caused Melunu's impecuniosity or that further security would stultify the proceedings.

Court Disposition

Parts of the summons were struck out and Melunu Pty Limited was ordered to provide further security for costs.

Orders

  • ['Strike out so much of the summons as contains claims for "tort" and an order "rectifying the written contract or varying it under the Contracts Review Act 1980", and also paragraphs 22, 23 and 24 of section C of the summons.' 'Grant liberty to Melunu Pty Limited to file an amended summons complying with these...