Rocking Horse Constructions Pty Ltd v Equa Building Services Pty Ltd [2022] NSWSC 1751

Rocking Horse Constructions Pty Ltd v Equa Building Services Pty Ltd [2022] NSWSC 1751

The application for security for costs was dismissed because, although the evidence met the threshold that Equa may not be able to pay an adverse costs order, the cross-claim was not wholly distinct from the defence and the applicant did not isolate costs referable only to the cross-claim. The proceedings arose out of the same factual matrix, and Rocking Horse failed to establish either that Equa occupied the position of an attacker or that the claimed costs were not part of the main claim. Therefore, the court declined to exercise its discretion to order security for costs.

Parties
Applicant/plaintiff/first Cross Defendant: Rocking Horse Construction Pty Ltd; Applicant/second Cross Defendant: Alexander Anthony Scionti; Respondent/defendant/cross Claimant: Equa Building Services Pty Ltd
Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Notice of Motion (security for Costs) in Equity — Commercial List / Interlocutory Application — Procedural Ruling
Outcome
Notice of motion dismissed with costs
Legal Topics
Security for Costs, Costs, Cross Claims, Trustee Corporations, Misleading and Deceptive Conduct, Statutory Warranties
Civil Procedure Equity Commercial Law Security for Costs Costs Cross Claims Trustee Corporations Misleading and Deceptive Conduct +1 more

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Parties

Rocking Horse Construction Pty Ltd

Applicant/plaintiff/first Cross Defendant

Alexander Anthony Scionti

Applicant/second Cross Defendant

Equa Building Services Pty Ltd

Respondent/defendant/cross Claimant

Procedural Posture

Notice of Motion (security for Costs) in Equity — Commercial List / Interlocutory Application — Procedural Ruling

Legal Issues

  1. 1 Whether security for costs should be ordered in favour of the plaintiff/cross-defendants against the defendant/cross-claimant on the cross-claim under Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1) and/or Corporations Act 2001 (Cth) s 1335(1).
  2. 2 Whether Equa Building Services Pty Ltd is unable to pay the costs if ordered to do so.
  3. 3 Whether the nature of the cross-claim is defensive or offensive (attacking).

Ratio Decidendi

The application for security for costs was dismissed because, although the evidence met the threshold that Equa may not be able to pay an adverse costs order, the cross-claim was not wholly distinct from the defence and the applicant did not isolate costs referable only to the cross-claim. The proceedings arose out of the same factual matrix, and Rocking Horse failed to establish either that Equa occupied the position of an attacker or that the claimed costs were not part of the main claim. Therefore, the court declined to exercise its discretion to order security for costs.

Court Disposition

Notice of motion dismissed with costs

Orders

  • Notice of motion filed 29 September 2022 dismissed with costs.