Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 205

Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 205

The respondent's motion was dismissed because no material was put in support of dismissing the summons, and security for costs was not appropriate: there was limited evidence concerning the corporate applicant's ability to pay, no sufficient basis to order security against the individual applicant, both corporate and individual applicants were proceeding, no estimate of likely future costs was provided, the hearing was listed in about one month for half a day, and the requested $100,000 security was not conceivable as costs to be incurred before final hearing.

Jurisdiction
Australia
Judgment Date
13 July 2015
Procedural Posture
Application for Judicial Review in the Supervisory Jurisdiction Pursuant to S 69 of the Supreme Court Act 1970 (nsw) / Respondent's Motion to Dismiss the Summons or Alternatively for Security for Costs
Outcome
Respondent's motion dismissed; no security for costs ordered; directions made for further amended summons and written submissions.
Legal Topics
['security for Costs Against Corporate and Individual Applicants' 'supervisory Jurisdiction of the Supreme Court' 'amendment of Summons' 'joinder of Necessary Party' 'specificity of Grounds for Relief']
['civil Procedure' 'judicial Review' 'security for Costs'] ['security for Costs Against Corporate and Individual Applicants' 'supervisory Jurisdiction of the Supreme Court' 'amendment of Summons' 'joinder of Necessary Party' 'specificity of Grounds for Relief']

Case Brief

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Procedural Posture

Application for Judicial Review in the Supervisory Jurisdiction Pursuant to S 69 of the Supreme Court Act 1970 (nsw) / Respondent's Motion to Dismiss the Summons or Alternatively for Security for Costs

Legal Issues

  1. 1 ['Whether the summons should be dismissed.' 'Whether security for costs should be ordered against the corporate applicant under s 1335 of the Corporations Act 2001 (Cth).' 'Whether security for costs should be ordered against the individual applicant under UCPR r 42.21.' 'Whether the applicants should be directed to file a further amended summons correcting deficiencies in the current summons.']

Ratio Decidendi

The respondent's motion was dismissed because no material was put in support of dismissing the summons, and security for costs was not appropriate: there was limited evidence concerning the corporate applicant's ability to pay, no sufficient basis to order security against the individual applicant, both corporate and individual applicants were proceeding, no estimate of likely future costs was provided, the hearing was listed in about one month for half a day, and the requested $100,000 security was not conceivable as costs to be incurred before final hearing.

Court Disposition

Respondent's motion dismissed; no security for costs ordered; directions made for further amended summons and written submissions.

Orders

  • ["Dismiss the respondent's motion of 16 June 2015." 'Direct that the costs of the motion be costs in the proceedings.' 'Direct that the applicants file and serve a further amended summons by 20 July 2015 (without marking the changes).' 'Direct that the applicants file and serve written submissions in support of the...