Springs Golf Club Pty Limited v Profile Golf Pty Limited & Anor [2006] NSWSC 395

Springs Golf Club Pty Limited v Profile Golf Pty Limited & Anor [2006] NSWSC 395

The plaintiff failed to establish any prima facie case to resist payment out of funds as required by authority, with only a bald belief unsupported by evidence. The notice to produce was an impermissible fishing expedition and not supported by a proper basis. There was no sufficient basis for indemnity costs. The adjournment was therefore refused and orders for payment out and costs on a party/party basis were made.

Parties
Plaintiff: Springs Golf Club Pty Limited; First Defendant: Profile Golf Pty Limited; Second Defendant: William Donald Mawney Taylor
Jurisdiction
Australia
Judgment Date
05 May 2006
Procedural Posture
Equity; Technology and Construction List / Post Judgment Applications – Costs and Payment Out of Funds
Outcome
Application for adjournment refused; funds ordered to be paid out to the first defendant; costs on a party/party basis ordered against the plaintiff.
Legal Topics
Security of Payments, Costs, Notice to Produce, Payment Out of Court
Building and Construction Security of Payments Costs Notice to Produce Payment Out of Court

Case Brief

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Parties

Springs Golf Club Pty Limited

Plaintiff

Profile Golf Pty Limited

First Defendant

William Donald Mawney Taylor

Second Defendant

Procedural Posture

Equity; Technology and Construction List / Post Judgment Applications – Costs and Payment Out of Funds

Legal Issues

  1. 1 Whether the plaintiff is entitled to an adjournment to prepare material to resist payment out of court funds to the first defendant
  2. 2 Whether the plaintiff has established a prima facie case to oppose payment out based on risk that funds may not be recovered if plaintiff succeeds in future proceedings
  3. 3 Whether a notice to produce seeking the first defendant’s financial details is impermissible fishing

Ratio Decidendi

The plaintiff failed to establish any prima facie case to resist payment out of funds as required by authority, with only a bald belief unsupported by evidence. The notice to produce was an impermissible fishing expedition and not supported by a proper basis. There was no sufficient basis for indemnity costs. The adjournment was therefore refused and orders for payment out and costs on a party/party basis were made.

Court Disposition

Application for adjournment refused; funds ordered to be paid out to the first defendant; costs on a party/party basis ordered against the plaintiff.

Orders

  • Plaintiff to pay first defendant’s costs on a party/party basis as agreed or assessed.
  • Funds paid into Court to be paid out to the first defendant.