Brad’s on Tap Plumbing Pty Ltd v The Owners – Strata Plan No 56443 [2016] NSWSC 512

Brad’s on Tap Plumbing Pty Ltd v The Owners – Strata Plan No 56443 [2016] NSWSC 512

The court was satisfied that there is credible evidence that the plaintiff Brad's on Tap Plumbing Pty Ltd would be unable to pay the defendant's costs if ordered to do so, enlivening the court's discretion under s 1335(1) Corporations Act 2001 (Cth). There was no relevant delay in the making of the security for...

Source-derived case information.

Parties
Plaintiff: Brad's on Tap Plumbing Pty Ltd; Defendant: The Owners – Strata Plan No 56443
Jurisdiction
Australia
Judgment Date
08 April 2016
Procedural Posture
Civil / Interlocutory Application for Security for Costs
Outcome
Application for security for costs granted. Security for costs to be provided by instalments. Proceedings to be stayed if security not given.
Legal Topics
Security for Costs, Corporations Law, Strata Title, Contract, Penalty Clause
Civil Procedure Security for Costs Corporations Law Strata Title Contract Penalty Clause

Source-derived case record

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Parties

Brad's on Tap Plumbing Pty Ltd

Plaintiff

The Owners – Strata Plan No 56443

Defendant

Procedural Posture

Civil / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 Whether the plaintiff should be ordered to provide security for the defendant's costs under s 1335(1) Corporations Act 2001 (Cth) and UCPR r 42.21
  2. 2 Whether the plaintiff is unlikely to be able to pay the defendant's costs if ordered
  3. 3 Whether the contractual clause claimed by the plaintiff constitutes a penalty under law

Ratio Decidendi

The court was satisfied that there is credible evidence that the plaintiff Brad's on Tap Plumbing Pty Ltd would be unable to pay the defendant's costs if ordered to do so, enlivening the court's discretion under s 1335(1) Corporations Act 2001 (Cth). There was no relevant delay in the making of the security for costs application and no discretionary factors tending against making an order. The quantum of security assessed was reasonable. Security was therefore ordered to be provided in two instalments, failing which the proceedings would be stayed.

Court Disposition

Application for security for costs granted. Security for costs to be provided by instalments. Proceedings to be stayed if security not given.

Orders

  • Order the plaintiff to provide security for the defendant's costs of the proceedings.
  • Order that such security be provided in whatever form the parties may agree and otherwise in a form approved by the Registrar.