Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211

Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211

Even assuming Uniform Civil Procedure Rules 2005 r 36.4(2) was engaged, the Court should order under r 36.4(3) that the costs order of 16 June 2011 take effect earlier than filing of a costs assessor's certificate. The unchallenged evidence was that Equititrust's appeal costs were approximately $131,000 and unlikely to be assessed below $50,000, the Court's experience supported that view, and Equititrust could repay any overpayment. The $50,000 security was therefore ordered to be paid out on undertakings. As Summer Hill did not advance reasons against payment of the $698,000, that sum was also ordered to be paid to Equititrust. Indemnity costs of the motion were ordered on the basis of...

Jurisdiction
Australia
Judgment Date
18 July 2011
Procedural Posture
Procedural Ruling Security for Costs / Notice of Motion After Dismissal of Appeal
Outcome
Motion granted. Funds held as security and funds received under the guarantee were ordered to be paid to Equititrust, and the appellants were ordered to pay the respondent's costs of the motion on an indemnity basis.
Legal Topics
['security for Costs' 'discharge of Security' 'payment Out of Funds Held by Registrar' 'costs Assessment' 'uniform Civil Procedure Rules 2005 R 36.4' 'indemnity Costs']
['civil Procedure' 'costs' 'appellate Procedure'] ['security for Costs' 'discharge of Security' 'payment Out of Funds Held by Registrar' 'costs Assessment' 'uniform Civil Procedure Rules 2005 R 36.4' 'indemnity Costs']

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Procedural Posture

Procedural Ruling Security for Costs / Notice of Motion After Dismissal of Appeal

Legal Issues

  1. 1 ['Whether money held as security for costs could be paid out to Equititrust before the appeal costs were assessed.' "Whether the costs order made by the Court of Appeal on 16 June 2011 should take effect before a costs assessor's certificate was filed under Uniform Civil Procedure Rules 2005 r 36.4." 'Whether the Registrar should pay to Equititrust the sum received from Abacus Group Holdings Limited after the guarantee was called upon.' 'Whether the appellants should pay the costs of the motion on an indemnity basis pursuant to a contractual entitlement.']

Ratio Decidendi

Even assuming Uniform Civil Procedure Rules 2005 r 36.4(2) was engaged, the Court should order under r 36.4(3) that the costs order of 16 June 2011 take effect earlier than filing of a costs assessor's certificate. The unchallenged evidence was that Equititrust's appeal costs were approximately $131,000 and unlikely to be assessed below $50,000, the Court's experience supported that view, and Equititrust could repay any overpayment. The $50,000 security was therefore ordered to be paid out on undertakings. As Summer Hill did not advance reasons against payment of the $698,000, that sum was also ordered to be paid to Equititrust. Indemnity costs of the motion were ordered on the basis of...

Court Disposition

Motion granted. Funds held as security and funds received under the guarantee were ordered to be paid to Equititrust, and the appellants were ordered to pay the respondent's costs of the motion on an indemnity basis.

Orders

  • ['Upon the respondent undertaking to the Court that it will apply the funds so received to pay the costs incurred by it in the appeal and any interest on those costs, and will repay the moneys to the extent it is determined on an assessment that Equititrust has been overpaid its costs of the appeal, having regard to...