The Owners – Strata Plan No 94267 v DEC Engineering & Construction Pty Ltd & Anor [2020] NSWSC 1647

The Owners – Strata Plan No 94267 v DEC Engineering & Construction Pty Ltd & Anor [2020] NSWSC 1647

Although the jurisdiction to order security for costs was enlivened because there was reason to believe the Builder could not meet an adverse costs order, the Developer's application was refused because the Developer was, in substance, the attacker: its cross claim sought to set aside the Deed, recover monies paid under it, and pursue damages, while the Builder's claim was a documentary and formal claim to enforce the Deed. The security sought was therefore, in substance, security for the costs of the Developer's own cross claim.

Jurisdiction
Australia
Judgment Date
18 November 2020
Procedural Posture
Application for Security for Costs / Notice of Motion Filed on 4 September 2020 in Equity Technology and Construction List
Outcome
Application for security for costs dismissed.
Legal Topics
['security for Costs' 'cross Claims' 'deed of Indemnity' 'discretion to Refuse Security' 'attacker and Defender in Proceedings']
['civil Procedure' 'costs' 'construction Law'] ['security for Costs' 'cross Claims' 'deed of Indemnity' 'discretion to Refuse Security' 'attacker and Defender in Proceedings']

Case Brief

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Procedural Posture

Application for Security for Costs / Notice of Motion Filed on 4 September 2020 in Equity Technology and Construction List

Legal Issues

  1. 1 ["Whether the Developer's application for security for costs should be refused as a matter of discretion because the Developer was, in substance, seeking security for the costs of its own cross claim against the Builder." 'Whether, having regard to the overall nature of the proceedings, the Developer or the Builder was in substance the attacker or defender in relation to the cross claims.']

Ratio Decidendi

Although the jurisdiction to order security for costs was enlivened because there was reason to believe the Builder could not meet an adverse costs order, the Developer's application was refused because the Developer was, in substance, the attacker: its cross claim sought to set aside the Deed, recover monies paid under it, and pursue damages, while the Builder's claim was a documentary and formal claim to enforce the Deed. The security sought was therefore, in substance, security for the costs of the Developer's own cross claim.

Court Disposition

Application for security for costs dismissed.

Orders

  • ["The Developer's notice of motion of 4 September 2020 is dismissed with costs."]