Leighton v Arogen; Arogen v Leighton [2013] NSWSC 1129

Leighton v Arogen; Arogen v Leighton [2013] NSWSC 1129

The motion for security for costs should be dealt with first because Leighton's security motion had been outstanding for some time, the practical concern about staging could be addressed by ordering any security in instalments or tranches, and it would be unjust to require Leighton to incur the expense of a separate determination motion before its entitlement to security was established. Conditional orders would therefore be made to revive the cross-claim upon payment into court of $25,000 and to progress the proceedings accordingly.

Jurisdiction
Australia
Judgment Date
01 August 2013
Procedural Posture
Equity Division Technology and Construction List Procedural Ruling Concerning Orders and Directions / Making Orders to Give Effect to Earlier Reasons Concerning Dismissal for Non Compliance With Court Orders of the Defendant's Cross Claim
Outcome
Once the specified conditions are met, a declaration is to be made that the cross-claim in proceedings 2012/342559 does not stand dismissed; the application for security for costs is to be dealt with before any question of separate determination.
Legal Topics
['orders and Directions' 'security for Costs' 'separate Determination' 'cross Claim Dismissed for Non Compliance' 'payment Into Court as Security for Costs']
['civil Procedure' 'equity' 'technology and Construction'] ['orders and Directions' 'security for Costs' 'separate Determination' 'cross Claim Dismissed for Non Compliance' 'payment Into Court as Security for Costs']

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Procedural Posture

Equity Division Technology and Construction List Procedural Ruling Concerning Orders and Directions / Making Orders to Give Effect to Earlier Reasons Concerning Dismissal for Non Compliance With Court Orders of the Defendant's Cross Claim

Legal Issues

  1. 1 ["Whether the plaintiff's notice of motion for security for costs should be heard before the defendant's proposed motion for separate determination of questions arising on the cross-claim." 'Whether, conditional on payment into court of $25,000, a declaration should be made that the cross-claim in proceedings 2012/342559 does not stand dismissed.']

Ratio Decidendi

The motion for security for costs should be dealt with first because Leighton's security motion had been outstanding for some time, the practical concern about staging could be addressed by ordering any security in instalments or tranches, and it would be unjust to require Leighton to incur the expense of a separate determination motion before its entitlement to security was established. Conditional orders would therefore be made to revive the cross-claim upon payment into court of $25,000 and to progress the proceedings accordingly.

Court Disposition

Once the specified conditions are met, a declaration is to be made that the cross-claim in proceedings 2012/342559 does not stand dismissed; the application for security for costs is to be dealt with before any question of separate determination.

Orders

  • ['In proceedings 2013/223262, conditional upon and subject to the plaintiff in those proceedings paying into court in proceedings 2012/342559, the sum of $25,000 by 5 August 2013, such sum to be held on account of costs ordered to be payable by the defendant in those proceedings to the plaintiff in those...