Strata Plan 94417 trading as The Owners - Strata Plan 94417 v Alta Vale Residential Pty Ltd [2023] NSWSC 1089

Strata Plan 94417 trading as The Owners - Strata Plan 94417 v Alta Vale Residential Pty Ltd [2023] NSWSC 1089

The Court found the builder was in substance acting as a plaintiff on the cross-claims and not defensively; the builder failed to adduce evidence of good prospects of success or that security would stultify the proceedings; the builder did not dispute the relevant threshold test for security for costs and failed to comply with directions regarding quantum; therefore, orders for security for costs against the builder were appropriate.

Parties
Plaintiff: Strata Plan 94417 trading as The Owners - Strata Plan 94417; First Defendant/cross Claimant: Alta Vale Residential Pty Ltd (former name TC Build Pty Limited); Second Defendant: FPG Northbridge Pty Limited; First Cross Defendant: DKO Architecture (NSW) Pty Ltd; Second Cross Defendant: PGH Bricks & Pavers Pty Ltd; Third Cross Defendant: Fiducia Development Group Pty Limited; Fourth Cross Defendant: Wood & Grieve Engineers Pty Limited; Fifth Cross Defendant: Encore Fire Systems Pty Limited; Sixth Cross Defendant: Scientific Fire Services Pty Ltd; Seventh Cross Defendant: Integrated Group Services Pty Ltd; Eighth Cross Defendant: Aegis Electric & Gas International Services Limited (a company registered in England and Wales under Company Number 3200519) as sole corporate member of Syndicate 1225 at Lloyds; Ninth Cross Defendant: Ascot Corporate Name Limited as sole corporate member of Lloyd's Syndicate 1414; Tenth Cross Defendant: Asta Managing Agency Limited acting for and on behalf of the members of Everest syndicate 2786 a Lloyd's syndicate
Jurisdiction
Australia
Judgment Date
04 September 2023
Procedural Posture
Security for Costs Application in Technology/construction Proceedings / Interlocutory (application for Security for Costs; Ex Tempore Ruling)
Outcome
Orders for security for costs made against the builder (Alta Vale Residential Pty Ltd) in favour of the relevant cross-defendants; builder to pay costs of the security for costs applications forthwith, with possible assessment on a gross sum basis.
Legal Topics
Security for Costs, Cross Claims, Costs, Corporate Impecuniosity, Building Defects
Civil Procedure Equity Building and Construction Security for Costs Cross Claims Costs Corporate Impecuniosity Building Defects

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Parties

Strata Plan 94417 trading as The Owners - Strata Plan 94417

Plaintiff

Alta Vale Residential Pty Ltd (former name TC Build Pty Limited)

First Defendant/cross Claimant

FPG Northbridge Pty Limited

Second Defendant

DKO Architecture (NSW) Pty Ltd

First Cross Defendant

PGH Bricks & Pavers Pty Ltd

Second Cross Defendant

Fiducia Development Group Pty Limited

Third Cross Defendant

Wood & Grieve Engineers Pty Limited

Fourth Cross Defendant

Encore Fire Systems Pty Limited

Fifth Cross Defendant

Scientific Fire Services Pty Ltd

Sixth Cross Defendant

Integrated Group Services Pty Ltd

Seventh Cross Defendant

Aegis Electric & Gas International Services Limited (a company registered in England and Wales under Company Number 3200519) as sole corporate member of Syndicate 1225 at Lloyds

Eighth Cross Defendant

Ascot Corporate Name Limited as sole corporate member of Lloyd's Syndicate 1414

Ninth Cross Defendant

Asta Managing Agency Limited acting for and on behalf of the members of Everest syndicate 2786 a Lloyd's syndicate

Tenth Cross Defendant

Procedural Posture

Security for Costs Application in Technology/construction Proceedings / Interlocutory (application for Security for Costs; Ex Tempore Ruling)

Legal Issues

  1. 1 Whether orders for security for costs should be made against the builder (cross-claimant) in relation to cross-claims against subcontractors and insurers
  2. 2 Whether the cross-claims are defensive in nature such that security for costs should be refused
  3. 3 Whether the builder has demonstrated good prospects of success on its cross-claims

Ratio Decidendi

The Court found the builder was in substance acting as a plaintiff on the cross-claims and not defensively; the builder failed to adduce evidence of good prospects of success or that security would stultify the proceedings; the builder did not dispute the relevant threshold test for security for costs and failed to comply with directions regarding quantum; therefore, orders for security for costs against the builder were appropriate.

Court Disposition

Orders for security for costs made against the builder (Alta Vale Residential Pty Ltd) in favour of the relevant cross-defendants; builder to pay costs of the security for costs applications forthwith, with possible assessment on a gross sum basis.

Orders

  • Orders for security for costs to be made against the builder in favour of the successful cross-defendants.
  • The builder to pay the costs of the cross-defendants’ security applications forthwith and, if requested, to be assessed on a gross sum basis.