Owners Corporation Strata Plan 64970 v Austruc Constructions Limited [2007] NSWSC 778

Owners Corporation Strata Plan 64970 v Austruc Constructions Limited [2007] NSWSC 778

The application for security for costs was dismissed because Austruc failed to prove that the Owners Corporation would be unable to pay an adverse costs order, failed to prosecute the application promptly, and failed to provide satisfactory evidence explaining why additional security was justified given the substantial overlap between the 2003 and 2005 proceedings and the security already provided in the 2003 proceedings.

Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Application for Security for Costs in Supreme Court of New South Wales Equity Division, Technology and Construction List Proceedings / Amended Notice of Motion Filed on 16 December 2005 Heard Ex Tempore on 13 July 2007
Outcome
Application for security for costs dismissed.
Legal Topics
['security for Costs' 'delay' 'overlapping Proceedings' 'owners Corporation Levies' 'statutory Warranties Under the Home Building Act 1989 (nsw)']
['practice and Procedure' 'security for Costs' 'building and Construction'] ['security for Costs' 'delay' 'overlapping Proceedings' 'owners Corporation Levies' 'statutory Warranties Under the Home Building Act 1989 (nsw)']

Case Brief

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Procedural Posture

Application for Security for Costs in Supreme Court of New South Wales Equity Division, Technology and Construction List Proceedings / Amended Notice of Motion Filed on 16 December 2005 Heard Ex Tempore on 13 July 2007

Legal Issues

  1. 1 ['Whether Austruc Constructions Limited should be granted security for costs against the Owners Corporation in the 2005 proceedings.' "Whether Austruc discharged its evidentiary burden of showing that the Owners Corporation, if unsuccessful, would be unable to pay Austruc's costs." 'Whether delay in prosecuting the security for costs application should weigh against the grant of security.' 'Whether the overlap between the 2003 and 2005 proceedings, and security already provided in the 2003 proceedings, justified refusing additional security in the 2005 proceedings.']

Ratio Decidendi

The application for security for costs was dismissed because Austruc failed to prove that the Owners Corporation would be unable to pay an adverse costs order, failed to prosecute the application promptly, and failed to provide satisfactory evidence explaining why additional security was justified given the substantial overlap between the 2003 and 2005 proceedings and the security already provided in the 2003 proceedings.

Court Disposition

Application for security for costs dismissed.

Orders

  • ['The amended notice of motion originally filed on 16 December 2005 is dismissed.']