Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92

Diamond & Anor v Birdon Contracting Pty Limited & Anor [2007] NSWLEC 92

Applying s 69(3) of the Land & Environment Court Act 1979, guided by KP Cable and the binding qualifications in Melville, security for costs should be ordered because the motion was brought promptly, the applicants' case was assumed to be arguable, the first applicant was an undischarged bankrupt, there was no relevant causal link between impecuniosity and the respondent's conduct, no person behind the applicants had offered security or an undertaking, and Melville answered the contention that security would oppressively deny an impecunious person the right to litigate in s 123 proceedings.

Jurisdiction
Australia
Judgment Date
07 November 2006
Procedural Posture
Proceedings Under S 123(1) of the Environmental Planning and Assessment Act 1979 to Remedy or Restrain an Alleged Breach of the Act / First Respondent's Notice of Motion for Security for Costs
Outcome
Security for costs ordered in favour of the first respondent; proceedings to be stayed in default; remaining paragraphs of the notice of motion stood over generally; first applicant ordered to pay the costs of the motion.
Legal Topics
['security for Costs' 'proceedings by Any Person Under S 123(1) of the Environmental Planning and Assessment Act 1979' 'impecunious Natural Person' 'undischarged Bankrupt Applicant']
['environmental Planning and Assessment' 'civil Procedure' 'costs'] ['security for Costs' 'proceedings by Any Person Under S 123(1) of the Environmental Planning and Assessment Act 1979' 'impecunious Natural Person' 'undischarged Bankrupt Applicant']

Case Brief

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Procedural Posture

Proceedings Under S 123(1) of the Environmental Planning and Assessment Act 1979 to Remedy or Restrain an Alleged Breach of the Act / First Respondent's Notice of Motion for Security for Costs

Legal Issues

  1. 1 ["Whether the first respondent's application for security for costs was brought promptly" "Whether the applicants' case was arguable and bona fide" "Whether the first applicant's impecuniosity resulted from the first respondent's conduct" 'Whether ordering security for costs would be oppressive by denying an impecunious person the right to litigate' 'Whether any person standing behind the applicants was likely to benefit from the proceedings and willing to provide security or an undertaking' 'Whether the proceedings were defensive in nature or instituted by the applicants']

Ratio Decidendi

Applying s 69(3) of the Land & Environment Court Act 1979, guided by KP Cable and the binding qualifications in Melville, security for costs should be ordered because the motion was brought promptly, the applicants' case was assumed to be arguable, the first applicant was an undischarged bankrupt, there was no relevant causal link between impecuniosity and the respondent's conduct, no person behind the applicants had offered security or an undertaking, and Melville answered the contention that security would oppressively deny an impecunious person the right to litigate in s 123 proceedings.

Court Disposition

Security for costs ordered in favour of the first respondent; proceedings to be stayed in default; remaining paragraphs of the notice of motion stood over generally; first applicant ordered to pay the costs of the motion.

Orders

  • ['The applicants provide security for costs of the first respondent in the sum of $50,000.00 or, alternatively, in the form of a bank guarantee in the sum of $50,000.00.' 'That in default of the provision of security for costs in Order (1) the application be permanently stayed or stayed until any further order of...