Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 2) [2018] NSWCA 329

Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 2) [2018] NSWCA 329

Because the security by caveatable interest was offered over property held by a third party as trustee of a testamentary trust, and the appellant had not explained how the trustee had power to charge that trust property for the benefit of a non-beneficiary third party, there were sufficient doubts about enforceability to justify the first and second respondents' rejection of the security. The prior interlocutory order could be varied on liberty to apply without a notice of motion. The appellant was given until 29 January 2019 to provide $85,000 cash or a bank guarantee as security, failing which the appeal against the first and second respondents would be dismissed.

Jurisdiction
Australia
Judgment Date
13 December 2018
Procedural Posture
Appeal / Security for Costs; Application to Vary Interlocutory Order
Outcome
Appeal against the first and second respondents to be dismissed on 29 January 2019 unless the appellant lodges $85,000 or a bank guarantee in that amount as security for costs by that date; appellant to pay costs of the security for costs proceedings forthwith.
Legal Topics
['appeal Security for Costs' 'variation of Interlocutory Order' 'liberty to Apply' 'caveatable Interest' 'testamentary Trust Property']
['civil Procedure' 'trusts' 'real Property'] ['appeal Security for Costs' 'variation of Interlocutory Order' 'liberty to Apply' 'caveatable Interest' 'testamentary Trust Property']

Case Brief

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Procedural Posture

Appeal / Security for Costs; Application to Vary Interlocutory Order

Legal Issues

  1. 1 ['Whether the Court could vary the 12 November 2018 interlocutory security for costs order without a notice of motion.' 'Whether the first and second respondents had a reasonable basis to reject security by way of a caveatable interest over property registered in the name of a third party trustee of a testamentary trust.' 'Whether the appellant should be given a further opportunity to provide acceptable security for costs.']

Ratio Decidendi

Because the security by caveatable interest was offered over property held by a third party as trustee of a testamentary trust, and the appellant had not explained how the trustee had power to charge that trust property for the benefit of a non-beneficiary third party, there were sufficient doubts about enforceability to justify the first and second respondents' rejection of the security. The prior interlocutory order could be varied on liberty to apply without a notice of motion. The appellant was given until 29 January 2019 to provide $85,000 cash or a bank guarantee as security, failing which the appeal against the first and second respondents would be dismissed.

Court Disposition

Appeal against the first and second respondents to be dismissed on 29 January 2019 unless the appellant lodges $85,000 or a bank guarantee in that amount as security for costs by that date; appellant to pay costs of the security for costs proceedings forthwith.

Orders

  • ['Subject to order 2, the appeal against the first and second respondents shall be dismissed on 29 January 2019.' 'Order 1 shall not take effect if on or before 29 January 2019 the appellant has lodged with the registrar of the Court the sum of $85,000 or a bank guarantee in that amount by way of security for the...