Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302

Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302

Credible testimony (no property, low share capital, absence of financial records, company refusal to provide proof) gives reason to believe Treloar Constructions would be unable to pay respondent's costs if unsuccessful. Security for costs of $75,000 ordered and proceedings stayed until provided. Stay of execution/enforcement of costs orders is granted conditionally on payment of $225,000 into a joint controlled solicitors' account as security, balancing interests since respondent is impecunious and appellant has arguable grounds of appeal.

Jurisdiction
Australia
Judgment Date
04 November 2016
Procedural Posture
Appeal / Interlocutory Orders Pending Appeal
Outcome
Security for costs application granted (security ordered); stay application granted subject to condition (money to be paid into joint account); proceedings stayed until security provided.
Legal Topics
['security for Costs' 'stay of Proceedings' 'corporate Insolvency' 'director Liability']
['practice and Procedure' 'corporations Law'] ['security for Costs' 'stay of Proceedings' 'corporate Insolvency' 'director Liability']

Case Brief

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Procedural Posture

Appeal / Interlocutory Orders Pending Appeal

Legal Issues

  1. 1 ["Whether credible testimony exists to believe Treloar Constructions Pty Limited will be unable to pay respondent's appeal costs under s 1335(1) Corporations Act 2001 (Cth)" 'Whether a stay of execution and enforcement of costs orders should be granted and on what conditions']

Ratio Decidendi

Credible testimony (no property, low share capital, absence of financial records, company refusal to provide proof) gives reason to believe Treloar Constructions would be unable to pay respondent's costs if unsuccessful. Security for costs of $75,000 ordered and proceedings stayed until provided. Stay of execution/enforcement of costs orders is granted conditionally on payment of $225,000 into a joint controlled solicitors' account as security, balancing interests since respondent is impecunious and appellant has arguable grounds of appeal.

Court Disposition

Security for costs application granted (security ordered); stay application granted subject to condition (money to be paid into joint account); proceedings stayed until security provided.

Orders

  • ["Appellant to provide security for respondent's costs of appeal in sum of $75,000, paid into court or via irrevocable bank guarantee." 'Proceedings stayed until appellant provides security for costs.' 'Execution/enforcement of costs order stayed upon appellant paying $225,000 into a joint controlled monies account...