CPB Contractors Pty Ltd & Ors v Heyday5 Pty Ltd & Ors [2020] NSWSC 1385

CPB Contractors Pty Ltd & Ors v Heyday5 Pty Ltd & Ors [2020] NSWSC 1385

The court found no reasonable basis to resist substitution of cash with an unconditional bank guarantee as security, since such guarantees are equivalent to cash and queries regarding the applicants' financial position or disclosure of joint venture documents are irrelevant. Accordingly, CPB is permitted to substitute the cash with an unconditional bank guarantee.

Parties
First Plaintiff/applicant: CPB Contractors Pty Ltd; Second Plaintiff/applicant: Dragados Australia Pty Ltd; Third Plaintiff/applicant: Samsung C & T Corporation; First Defendant/respondent: Heyday5 Pty Ltd; Second Defendant: David Francis; Third Defendant: Resolution Institute
Jurisdiction
Australia
Judgment Date
12 October 2020
Procedural Posture
Interlocutory Motion / Substitution of Security Pending Hearing
Outcome
Plaintiffs' motion granted; costs ordered against defendant on indemnity basis
Legal Topics
Payment Into Court, Bank Guarantees, Substitution of Security
Civil Procedure Payment Into Court Bank Guarantees Substitution of Security

Case Brief

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Parties

CPB Contractors Pty Ltd

First Plaintiff/applicant

Dragados Australia Pty Ltd

Second Plaintiff/applicant

Samsung C & T Corporation

Third Plaintiff/applicant

Heyday5 Pty Ltd

First Defendant/respondent

David Francis

Second Defendant

Resolution Institute

Third Defendant

Procedural Posture

Interlocutory Motion / Substitution of Security Pending Hearing

Legal Issues

  1. 1 Whether plaintiffs may substitute cash paid into court with an unconditional bank guarantee

Ratio Decidendi

The court found no reasonable basis to resist substitution of cash with an unconditional bank guarantee as security, since such guarantees are equivalent to cash and queries regarding the applicants' financial position or disclosure of joint venture documents are irrelevant. Accordingly, CPB is permitted to substitute the cash with an unconditional bank guarantee.

Court Disposition

Plaintiffs' motion granted; costs ordered against defendant on indemnity basis

Orders

  • The Plaintiffs may within 4 weeks deliver into Court an unconditional bank guarantee in the sum of $9,973,998.44, or unconditional bank guarantees in the aggregate sum of $9,973,998.44, naming the First Defendant as the favouree with an expiry date of no less than one year from the date of issue.
  • If the Plaintiffs deliver into court an unconditional bank guarantee or guarantees as required, the money ($9,973,998.44) and any accrued interest paid into court to be paid out to the Plaintiffs.