Concrete Constructions v Dalma Formwork [1999] NSWCA 16

Concrete Constructions v Dalma Formwork [1999] NSWCA 16

Leave to appeal was refused because the Court was not persuaded that Rolfe J's discretion miscarried. Although clause 2.2 did not make Dalma's obligation arise merely on unsuccessful termination of mediation, Concrete could still assert its contractual set-off by declaratory or other relief. More broadly, Dalma's substantial claim and Concrete's substantial cross-claim arose from the same or essentially the same factual matrix, and Concrete gave no undertaking not to prosecute its cross-claim; in those circumstances refusal of security for costs was within the proper exercise of discretion.

Jurisdiction
Australia
Judgment Date
18 February 1999
Procedural Posture
Application for Leave to Appeal Concerning Security for Costs / Court of Appeal Application for Leave to Appeal From Rolfe J's Dismissal of Concrete's Notice of Motion for Security for Costs
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['security for Costs' 'discretionary Orders' 'claim and Cross Claim Arising From Same Factual Matrix' 'set Off' 'building Subcontract' 'misleading or Deceptive Conduct']
['civil Procedure' 'corporations' 'building and Construction' 'contract' 'trade Practices'] ['security for Costs' 'discretionary Orders' 'claim and Cross Claim Arising From Same Factual Matrix' 'set Off' 'building Subcontract' 'misleading or Deceptive Conduct']

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Procedural Posture

Application for Leave to Appeal Concerning Security for Costs / Court of Appeal Application for Leave to Appeal From Rolfe J's Dismissal of Concrete's Notice of Motion for Security for Costs

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the primary judge's discretionary refusal to order security for costs." "Whether substantially the same facts were likely to be canvassed in Dalma's claim and Concrete's cross-claim, and the significance of that to security for costs." 'Whether clause 2.2 of the deed gave Concrete a presently enforceable right of set-off or other relief before 1 July 1999.' "Whether the primary judge's discretion miscarried."]

Ratio Decidendi

Leave to appeal was refused because the Court was not persuaded that Rolfe J's discretion miscarried. Although clause 2.2 did not make Dalma's obligation arise merely on unsuccessful termination of mediation, Concrete could still assert its contractual set-off by declaratory or other relief. More broadly, Dalma's substantial claim and Concrete's substantial cross-claim arose from the same or essentially the same factual matrix, and Concrete gave no undertaking not to prosecute its cross-claim; in those circumstances refusal of security for costs was within the proper exercise of discretion.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal dismissed.' "Claimant to pay opponent's costs of application."]