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  4. Laurie Lindner Constructions Pty Ltd v Western Cape Communities Trust Pty Ltd - [2024] QSC 123

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Laurie Lindner Constructions Pty Ltd v Western Cape Communities Trust Pty Ltd[2024] QSC 123

Laurie Lindner Constructions Pty Ltd v Western Cape Communities Trust Pty Ltd[2024] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:

Laurie Lindner Constructions Pty Ltd v Western Cape Communities Trust Pty Ltd [2024] QSC 123

PARTIES:

LAURIE LINDNER CONSTRUCTIONS PTY LTD

(Respondent Plaintiff)

v

WESTERN CAPE COMMUNITIES TRUST PTY LTD AS TRUSTEE FOR THE WESTERN CAPE COMMUNITIES TRUST

(Applicant Defendant)

FILE NO/S:

417 of 2023

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 June 2024

DELIVERED AT:

Cairns

HEARING DATES:

2 February 2024, 15 March 2024

JUDGE:

Henry J

ORDER:

  1. The plaintiff will give security for the defendant’s costs up to mediation in the sum of $90,000 to be either paid into court or secured by provision of a bank guarantee evidenced in a form satisfactory to the Registrar within 28 days of this order.
  2. The proceeding is stayed until such security is provided.
  3. Liberty to the defendant to apply for further security on the giving of five business days notice in writing.
  4. The plaintiff will pay the defendant’s costs thrown away by the adjournment of the application on 2 February 2024, to be assessed, if not agreed, on the standard basis.
  5. The balance of the costs of the application are reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – PLAINTIFF’S OR APPLICANT’S IMPECUNIOSITY – CAUSE OF PLAINTIFF’S OR APPLICANT’S IMPECUNIOSITY – where the impecunious plaintiff claims its impecuniosity is attributable to the defendant’s conduct – where the plaintiff claims that the defendant has been unjustly enriched through breach of contract, monies wrongly withheld as liquidated damages and monies wrongly retained from progress payments – where the defendant applies for security for its costs – where the discretion is enlivened – whether a security for costs order would stultify the proceedings – whether and to what extent the defendant should be granted security for their costs

Base 1 Projects Pty Ltd v Islamic college of Brisbane Ltd [2012] QCA 114, cited

Blatch v Archer [1774] 98 ER 969, cited

Equititrust Limited v Tucker [2020] QSC 269, cited

Jazabas Pty Ltd v Haddad [2007] NSWCA 291, cited

Ollerenshaw v The Uniting Church in Australia Property (NSW) [2017] NSWSC 1637, cited

Rossi v Westbrook [2013] QCA 102, cited

Suncare Constructions Australia Pty Ltd & Anor v Gainspace (Mackay) Pty Ltd [2016] QSC 67, followed

Treadstone Developments Pty Ptd Wever Family Trust v The Salisbury Group Pty Ltd [2014] QSC 109, cited

Zenith Corporation Australia Pty Ltd v Optus Mobile Pty Ltd [2020] NSWSC 1110, cited

Corporation Act 2001 (Cth) r 1335

Uniform Civil Procedure Rules 1999 (Qld) r 670, 671, 672

COUNSEL:

C Ryall for respondent plaintiff

P Nevard for applicant defendant

SOLICITORS:

Miller Harris Lawyers for respondent plaintiff

Clayton Utz for applicant defendant

  1. [1]
    Lindner Constructions contracted with Western Cape Communities Trust Pty Ltd to build a new administration centre at Weipa, having tendered a price of about $9.4 million.  It complains its works cost in excess of $13.4 million but it has only received payments of $8.9 million from WCCT.  It is suing WCCT for over $4 million.
  2. [2]
    Lindner Constructions is impecunious.  It alleges that is a result of WCCT’s under-payment of it.
  3. [3]
    Conscious of Lindner Constructions’ impecuniosity, WCCT makes application for security for costs per r 670 Uniform Civil Procedure Rules 1999 (Qld) or s 1335 Corporations Act 2001 (Cth).  Those provisions both enliven a discretion to order security for costs where, as r 671(a) puts it, “the plaintiff is a corporation and there is reason to believe the plaintiff company will not be able to pay the defendant’s costs if ordered to pay them”.  The discretion is clearly enlivened. 
  4. [4]
    The question is whether the court should order security for costs in the exercise of that discretion. 

What are the main discretionary considerations here?

  1. [5]
    Rule 672 lists an array of matters the court may have regard to in deciding whether to make such an order.  Section 1335 Corporations Act does not do likewise, but it is not suggested in the circumstances of a case like the present that the discretion would be exercised any differently under s 1335 than it would be under the UCPR.
  2. [6]
    Rule 672 relevantly provides:
  1. “672
    Discretionary factors for security for costs
  1. In deciding whether to make an order, the court may have regard to any of the following matters –
  1. (a)
    the means of those standing behind the proceedings;
  1. (b)
    the prospects of success or merits on the proceedings;
  1. (c)
    the genuineness of the proceedings;
  1. (d)
    for rule 671(a) – the impecuniosity of a corporation;
  1. (e)
    whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct; …
  1. (g)
    whether an order for securfity for costs would be oppressive;
  1. (h)
    whether an order for security for costs would stifle the proceedings; …
  1. (k)
    whether delay by the plaintiff in starting the proceedings has prejudiced the defendant; …
  1. (m)
    the costs of the proceedings.”
  1. [7]
    Some of the above listed matters are of minor or neutral relevance here.  It is not suggested the claim is not genuine (matter (c)), for instance that it is trivial or vexatious.   However no informed assessment can be made of prospects or merits (matter (b)) on the materials filed.  There was some delay in starting the proceeding (matter (k)) but it is not suggested that has occasioned significant prejudice.  The costs of the proceeding (matter (m)) will be potentially substantial but that does not loom as a determinative consideration.  Rather it informs consideration of whether a costs order would stultify the proceeding, that is, be oppressive (matter (g)) or stifle the proceeding (matter (h)).
  2. [8]
    The discretionary considerations of more material relevance here are:
  • whether Lindner Constructions’ impecuniosity is attributable to WCCT’s conduct (matter (e)); and
  • whether, in light of the company’s impecuniosity (matter (d)) and the means of those standing behind the proceeding (matter (a)), a costs order would stultify the proceeding.

Is Lindner Constructions’ impecuniosity attributable to WCCT’s conduct?

  1. [9]
    Consideration of whether Lindner Constructions’ impecuniosity is attributable to WCCT’s conduct requires an appreciation of the nature of the alleged conduct and of the source of impecuniosity.

Nature of the alleged conduct

  1. [10]
    Lindner Constructions tendered for and was contracted to perform the construction of an administration building at Weipa for WCCT.  WCCT’s plans for the construction involved a steel framed blockwork structure but it was agreed Lindner Constructions should build with a concrete framed structure.  The terms of the contract, particularly the process by which the architectural plans would be amended, are in dispute.  Lindner Constructions complains delay in WCCT’s provision of its architectural plans led to a miscellany of problems during the ensuing construction.  This is said to have caused delays and an excess, in the costs allowed for in Lindner Constructions’  tender, of on and off-site overheads, structural elements and barging and freight costs. 
  2. [11]
    The upshot is said to be that the works cost Lindner Constructions about $13.4 million but it has only received payments of $8.9 million.  It complains WCCT has been unjustly enriched.  It seeks $3.9 million in damages for breach of contract or on a quantum meruit basis.  Further, it seeks $628,255 it contends was wrongly withheld as liquidated damages for delays certified for by the project superintendent, AECOM.  It also seeks $235,400 retained from progress payments to rectify defects assessed by AECOM, which its pleads was excessive and should have been paid because Lindner Constructions attended to all defects notified to it.  Finally, it seeks $106,598, said to be the amount by which variation claims were wrongly under assessed by AECOM.
  3. [12]
    The alleged losses are thus alleged to result from assessments by AECOM with which Lindner Constructions disagrees and uncompensated cost blowouts alleged to have arisen from a delay in the provision of architectural plans.  On its own case Lindner Constructions embarked on the works without those plans, on the strength of disputed contractual terms regarding the plans’ timely provision.  There is no allegation in this context of misrepresentation or deception.  WCCT contends it has paid all it was liable to pay and that it is not liable for Lindner Constructions’ losses on the project.
  4. [13]
    There have been cases in which the nature of the case involved some form of misconduct or unacceptable business dealings, thus supporting the conclusion impecuniosity was caused by the conduct of a defendant.  This is not such a case. However, I respectfully adopt the reasoning of Jackson J in Suncare Constructions Australia Pty Ltd & Anor v Gainspace (Mackay) Pty Ltd,[1] that there does not need to be especially egregious conduct in order to conclude impecuniosity was caused by the conduct of a defendant. 
  5. [14]
    The discretion whether to order security for costs falls to be exercised with an appreciation both that:
  • if Lindner Constructions were to make good its case then it suffered a loss of over $4 million because of WCCT’s conduct; and
  • if it fails, it will be in no position to meet WCCT’s inevitably substantial costs incurred in defending the claim.

Is the alleged conduct the source of Lindner Constructions’ impecuniosity?

  1. [15]
    Lindner Constructions has ceased trading.  It owns no real property.  It owes $938,679.22 to the Australian Tax Office.  It is impecunious.  But why?
  2. [16]
    The construction of the administration centre for WCCT appears to have been its last project.  The construction reached practical completion in August 2019 and by October 2019 Lindner Constructions became unable to meet the minimum financial requirements to maintain its builder’s licence. 
  3. [17]
    Laurence Lindner, the principal of Lindner Constructions, deposed that the imposition of previously suspended liquidated damages on his company towards the final stages of the project in February 2019 had “financially crippled” his company.  He deposed Lindner Constructions’ inability to meet the financial requirements to hold a builder’s licence was “a result of the spiralling costs of construction and the imposition of liquidated damages”.
  4. [18]
    Such financial detail as was proffered in support of those general causative assertions by Mr Lindner was a one and a half page so-called “report” by an accounting firm which acted for the company.  The report, which was exhibited to Mr Lindner’s first affidavit, effectively repeated those assertions, again without exposition of the foundational evidence in support of them.  It said the absence of a builder’s licence meant the company could not trade, causing “the continued poor financial situation” of the company, and, if the withholding of retention and liquidated damages amounts had not occurred, the company would have retained its licence and continued to trade in a profitable position.
  5. [19]
    The report referred the reader to “attached Document Financial statements that our firm have prepared for the period 01/07/2016 to 30/06/20”.  The report’s only analysis of those attachments was to highlight the strong financial position of the company at June 2017 with retained profits of $3,026,996 compared to and its significant negative retained profits in June 2020 of -$457,324.  The attachments, at least those exhibited, were not historical financial records but mere compilations of information for the four years, done as a trading account sheet, a profit and loss account sheet and a balance sheet. 
  6. [20]
    No detail was proffered of Lindner Constructions’ other operations in the era of its financial decline save for the report’s uninformative reference to a project called Aurukun Hospital accompanied by the words, “Job Profit before Overheads $544,885”.  There was no exposure of detail of the historical progression of the financial decline to demonstrate its causal connection with WCCT’s project as distinct from other aspects of Lindner Constructions’ business operation and other adverse external influences. 
  7. [21]
    A corporate plaintiff alleging impecuniosity caused by a defendant has the onus of adducing evidence establishing the adequacy of its financial position before its dealings with the defendant and that the defendant has caused or been the material contributor to the plaintiff’s inability to meet a security for costs order.[2]
  8. [22]
    On such evidence as Lindner Constructions chose to produce, the downturn in its financial fortune coincided with the era of its project for WCCT.  That supports an inference the alleged underpayment of it by WCCT was the cause of or the material contributor to Lindner Constructions’ impecuniosity.   However, because of the paucity of evidence produced, it is not a particularly compelling inference. 
  9. [23]
    In weighing the mix of considerations to which regard ought to be had in the exercise of the discretion whether to order security for costs the weight each consideration should be given will vary.  The weight to be given to a consideration in that mix is logically informed by the force of the evidence chosen to be produced by the party best placed to provide it.  Such an approach is consistent with the rule in Blatch v Archer,[3] that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. 
  10. [24]
    The above discussed inference is not particularly compelling because of the paucity of evidence adduced by Lindner Constructions, the party best placed to produce evidence in support of it.  That consideration tempers the weight the inference should be given in the mix of considerations bearing upon the exercise of the discretion. 

Would a costs order stultify the proceeding?

  1. [25]
    The means of those standing behind the proceeding and whether an order for security for costs would stultify the proceeding are related considerations.  That is because the impecuniosity of a plaintiff company ordered to pay security for costs will not stultify its claim if those behind the company, standing to benefit from the claim, are able to provide the security. 
  2. [26]
    A claim can only be regarded as likely to be stultified by a security for costs order against an impecunious plaintiff if those standing to benefit from the claim are unable, not merely unwilling, to provide the requisite security.[4]  An impecunious plaintiff complaining of stultification has the onus of proving that those who stand to benefit from the litigation do not have the means to bear adverse costs orders.  Thus, it was observed in Zenith Corporation Australia Pty Ltd v Optus Mobile Pty Ltd:[5]

“[A] plaintiff that seeks to prove stultification must call the necessary evidence to establish the financial position of the persons who stand to benefit from the litigation and be full and frank it its disclosure to the Court.”

  1. [27]
    At the initial hearing of the present application, it became apparent there had not been such full and frank disclosure. 
  2. [28]
    Mr Lindner’s first affidavit deposed that he was the sole director and shareholder of the company.  He deposed he derived income from hiring out construction plant and equipment and undertaking a renovation for a friend.  He evidently retains his personal builder’s licence.  He did not depose how much income he earns.  That is a curious omission, given the obvious relevance of such information to the disclosure of his financial circumstances.  It is even more curious that the omission was not cured in any of his subsequently filed affidavits.
  3. [29]
    Mr Lindner deposed to owning:
  • real property at Kewarra Beach which he considers is worth $1million but was valued at the start of the year as being worth between $850,000 and $900,000;
  • a quarter interest in mortgaged real estate held by his ex-wife equating to a realisable value between $0 and $68,722;
  • a boat worth $250,000;
  • two vehicles worth $65,000; and
  • $80,000 savings. 

He thus has assets worth between $1,245,000 and $1,463,722.

  1. [30]
    As against that he deposed to a personal tax liability of $159,000, a tax liability as Director of $624,000 and a bank loan debt of $364,000; a total debt of $1,147,000.  His net assets are therefore worth between $98,000 and $316,722. 
  2. [31]
    The imprecision inherent in that unhelpfully wide range mainly derives from the limited reliability of the only two pieces of evidence advanced as to the value of the Kewarra Beach property.  One piece of evidence was a real estate agent’s “Comparative Market Analysis”, carried out without inspecting the property, which posited a value range of $850,000 to $900,000.  The other piece of evidence is Mr Lindner’s evidence that the appraisal is low and that the property “would fetch $1,000,000”. 
  3. [32]
    Mr Lindner clearly has some assets from which he can raise some security for costs, though doing so would involve a degree of logistical difficulty, delay and risk.  Indeed, his counsel submitted a lender would be unlikely to lend to Mr Lindner because of the risks associated with his substantial debts.  It is difficult to assess that probability given that a lender would likely be blessed with less conflicting evidence of the value of the Kewarra Beach property than the court has been given. 
  4. [33]
    This uncertainty, and other uncertainties canvassed below as to Mr Lindner’s true worth, determinatively detract from the utility, in the context of the present application, of a deed proffered by Mr Lindner personally guaranteeing his payment of costs ordered against the company.  The lack of fulsome evidence from him about his worth precludes sensible assessment of the worth of such a guarantee.  That it has been proffered therefore carries no material weight in determining whether I should exercise the discretion to order security for costs. 
  5. [34]
    It was exposed by WCCT at the first hearing, in consequence of a company search, that in fact Mr Lindner is not the sole beneficial shareholder of Lindner Constructions.   The search indicated that while the company’s 100,002 shares are in Mr Lindner’s name, he is only the beneficial owner of 4 of them. 
  6. [35]
    The stultification argument thus appeared unsustainable on the evidence adduced at the first hearing, the evidence having failed to establish who else stood to benefit from the litigation, let alone what their financial position was.  Lindner Constructions sought and were granted an adjournment with a view to adducing more evidence.
  7. [36]
    The further evidence was contained in a further affidavit by Mr Lindner.  He deposed the shares are held by him as trustee of the Lindner Family Trust.  He has broad discretionary powers as to distributions. 
  8. [37]
    The trust’s exhibited financial records show it has had no money since 2019.  That is not to say its beneficiaries are without assets but the evidence is silent as to the worth of all beneficiaries other than Mr Lindner and Lindner Constructions.
  9. [38]
    Mr Lindner’s counsel submitted beneficiaries who may hypothetically receive a distribution under the trust were “one step removed” from standing to benefit from the litigation.  He submitted the company and the trust were each alter egos of Mr Lindner so that there were no people other than him “standing behind” the company. 
  10. [39]
    That submission must be rejected.  It is tantamount to submitting that as the determiner of dividends paid by the company to the trust, and the determiner of distributions paid by the trust to its beneficiaries, Mr Lindner is the only person who stands to benefit from victory at trial. 
  11. [40]
    All but four of the company’s 100,002 shares are held for the trust and Mr Lindner is but one of an array of beneficiaries under the trust.  The other beneficiaries of the Lindner Family Trust are:
  • his ex-wife;
  • children of either of them;
  • spouses or former spouses of their children;
  • their grandchildren;
  • a corporation of which a beneficiary of the Lindner Family Trust is a director or member;
  • trustees of any trust of which a beneficiary of the Lindner Family Trust is a beneficiary;
  • trustees of any charitable trust;
  • any entity exempt from paying tax or to which a distribution is exempt from tax;
  • trustees of any superannuation fund of which a beneficiary of the Lindner Family Trust is a member; and
  • any other person or entity made a beneficiary after the creation of the trust.
  1. [41]
    Because the trust is discretionary and the range of beneficiaries who are entities is very broad it would be unfair to expect evidence to be adduced by Lindner Constructions about the financial circumstances of all potential beneficiaries.  It is inevitable that some beneficiaries would be more likely to benefit from the claim’s success than others.  As to who the most likely of them is to so benefit, a trustee’s  mere forecast of likely future distributions is of limited value, bearing in mind a trustee cannot fetter that future exercise of discretion.[6]  The facts likely to inform such a forecast will be of more assistance.  Evidence of past patterns of distributions and the reason for them and the past and current nature of connections between the beneficiaries  may aid the court to more reliably infer which , if any, beneficiaries are most likely to benefit from success at trial.
  2. [42]
    As to past patterns of distributions, Mr Lindner deposed to making multiple distributions to beneficiaries other than him between 2011 and 2019.  They totalled payments of the following amounts to the following persons or entities:
  • Bronwyn Lindner      $ 57,421
  • Grace Lindner       $ 84,208
  • Jade Lindner       $   2,555
  • Ruby Lee Lindner      $   2,555
  • Maramba Point Pty Ltd     $755,407
  • Lindner Children Future Company   $525,405
  • Lindner Children Grandmothers    $  15,450
  • Bron Holdings Pty Ltd     $ 495,705
  • RJ Discretionary Trust     $   18,230

Total        $1,956,936

In that time Mr Lindner received distributions from the trust totalling $1,333,985. 

  1. [43]
    Given that well over half of the trust’s past distributions have been made to persons and entities other than Mr Lindner, it is reasonable to infer that more persons or entities other than him stand to benefit from Lindner Constructions prevailing at trial.  It was within Lindner Constructions power, through Mr Lindner, to adduce sufficient evidence to counter such an inference. 
  2. [44]
    Some evidence of the past and current nature of connections between the beneficiaries was proffered.  Mr Lindner deposed he and his current wife have a child aged 9 and that he has four adult children aged between 18 and 31.  He deposed he has no intention of exercising a discretion to distribute trust money to his ex-wife.  He explained his adult children have no expectation of receiving any distribution from the trust, although he may make a distribution to them in the nature of an early inheritance if they have a serious need.  Mr Lindner deposed his children have no involvement in the company’s affairs or in his business affairs.
  3. [45]
    He also deposed to connections with some other beneficiaries.  He explained Lindner Children Future Company Pty Ltd was incorporated as a trustee company of which his ex-wife was director to fund their children’s educational needs.  The payments to it and the Lindner Children Grandmothers were made pursuant to the terms of a property settlement with his ex-wife.  The payments to Maramba Point Pty Ltd and Bron Holdings Pty Ltd were the mechanisms directed by his ex-wife for payment to her pursuant to the property settlement.
  4. [46]
    Subsequent to those payments in 2012 and 2013 the only beneficiaries paid any distributions were Mr Lindner and RJ Discretionary Trust, which received distributions annually from 2016.  Mr Lindner is a beneficiary of RJ Discretionary Trust and sole director and beneficial shareholder of its trustee, Raffles Joinery Pty Ltd.  When that trust was created in 2002 Mr Lindner and his then wife were the only beneficiaries. 
  5. [47]
    It is reasonable to infer his now ex-wife is no longer treated as a beneficiary of that trust and Mr Lindner is effectively the sole beneficiary.  Yet no evidence has been produced regarding the financial operations or worth of the trust or its trustee company.  The court is not to know what funds it holds for the benefit of Mr Lindner.
  6. [48]
    This is a concerning omission not only because Raffles Joinery Pty Ltd as trustee is a beneficiary of the Lindner Family Trust.  It is also concerning because it is information which was in any event relevant to a fulsome consideration of Mr Lindner’s own financial worth. 
  7. [49]
    The upshot of Lindner Constructions’ second attempt at meeting its onus of showing that those who stand to benefit from the litigation do not have the means to bear adverse costs orders is that the court has:
  • no evidence of the worth of any other beneficiaries of the Lindner Family Trust;
  • no evidence of the worth of another trustee company which Mr Lindner controls and which exists to his benefit;
  • no evidence of what income Mr Lindner receives; 
  • highly variable evidence of the likely worth of Mr Lindner’s most valuable asset, his Kewarra Beach property.
  1. [50]
    The second, third and fourth of those uncertainties are collectively so concerning to make it unnecessary to form a concluded view as to the significance of the first uncertainty standing alone.  Those three uncertainties could readily have been eased by evidence adduced by Lindner Constructions, the party uniquely placed to produce it.  The absence of such evidence leaves me unpersuaded that the ordering of security for costs would stultify the proceeding.

Security for costs should be ordered

  1. [51]
    In my conclusion, weighing the full mix of considerations relevant to the exercise of the discretion, there should be an order for security for costs. 

How much?

  1. [52]
    WCCT submits for security in the amount of $265,000 allowing for a five day trial or alternatively a staged approach by which security of $180,000 should be ordered up to and including the first day of trial or security of $125,000 should be ordered up to and including a mediation.  It is self evident the smaller the sum ordered is, the lower the chances the need to raise it will stultify the proceeding.  Further, it is well known that many cases settle before the listing or commencement of a trial, with a material proportion of them settling at a mediation. 
  2. [53]
    This is not a case in which the court has itself ordered a mediation.  However, the likelihood of a mediation occurring in a case of this kind makes the milestone of a mediation an attractive point to order security up to.  To cater for the possibility that a mediation does not occur or is unsuccessful and the matter is to advance to trial, my orders will give WCCT liberty to apply for further security.  
  3. [54]
    A legal costs consultant, Mr Ryan, has assessed WCCT’s standard professional costs to date and also assessed their probable future quantum through various stages up to completion of the trial.  Deducting a seeming double count for disclosure and setting aside the costs of this application, his assessment of standard costs up to mediation totals $86,376.80. 
  4. [55]
    It is conceivable some of the costs anticipated in that assessment, most obviously those associated with expert evidence, may end up being greater than contemplated.  The moderate approach taken tells against a substantial diminution by me of the standard costs estimate of Mr Ryan.
  5. [56]
    As to the costs of this application, Lindner Constructions was granted an adjournment after submissions at the first hearing.  It was an indulgence to a party wanting to gather and adduce evidence which should have been adduced at the first hearing.  WCCT should therefore have its costs thrown away by the adjournment of the hearing.  I propose to otherwise reserve costs, conscious that while WCCT has been successful, the amount of security ordered is substantially less than the amount sought from Lindner Constructions in correspondence putting it on notice that without security in that amount WCCT would advance the present application (to remove doubt, that feature is not necessarily determinative but it heralds the prospect of an argument best left for a future occasion). 
  6. [57]
    The costs thrown away would carry the above mentioned total comfortably past $90,000.  Taking the broad brush approach apt to the court’s determination of the quantum of security in an application of this kind, I will order security for costs in the amount of $90,000, to be provided by cash deposit or bank guarantee.

Orders

  1. [58]
    My orders are:
  1. The plaintiff will give security for the defendant’s costs up to mediation in the sum of $90,000 to be either paid into court or secured by provision of a bank guarantee evidenced in a form satisfactory to the Registrar within 28 days of this order.
  2. The proceeding is stayed until such security is provided.
  3. Liberty to the defendant to apply for further security on the giving of five business days notice in writing.
  4. The plaintiff will pay the defendant’s costs thrown away by the adjournment of the application on 2 February 2024, to be assessed, if not agreed, on the standard basis.
  5. The balance of the costs of the application are reserved.

Footnotes

[1]  [2016] QSC 67 [28].

[2] Jazabas Pty Ltd v Haddad [2007] NSWCA 291 [94]-[95]; Base 1 Projects Pty Ltd v Islamic college of Brisbane Ltd [2012] QCA 114 [26].

[3]  [1774] 98 ER 969, 970; also see Rossi v Westbrook [2013] QCA 102.

[4] Ollerenshaw v The Uniting Church in Australia Property (NSW) [2017] NSWSC 1637 [49]; cited with approval in Equititrust Limited v Tucker [2020] QSC 269 [73].

[5]  [2020] NSWSC 1110 [65].

[6] Treadstone Developments Pty Ptd Wever Family Trust v The Salisbury Group Pty Ltd [2014] QSC 109 [28].

Close

Editorial Notes

  • Published Case Name:

    Laurie Lindner Constructions Pty Ltd v Western Cape Communities Trust Pty Ltd

  • Shortened Case Name:

    Laurie Lindner Constructions Pty Ltd v Western Cape Communities Trust Pty Ltd

  • MNC:

    [2024] QSC 123

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    07 Jun 2024

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114
2 citations
Jump To
Cite 1 - [2012] QCA 114
Cite 2 - [2012] QCA 114
Blatch v Archer (1774) 98 ER 969
2 citations
Jump To
Cite 1 - (1774) 98 ER 969
Cite 2 - (1774) 98 ER 969
Equititrust Ltd v Tucker [2020] QSC 269
2 citations
Jump To
Cite 1 - [2020] QSC 269
Cite 2 - [2020] QSC 269
Jazabas Pty Ltd v Haddad [2007] NSWCA 291
2 citations
Jump To
Cite 1 - [2007] NSWCA 291
Cite 2 - [2007] NSWCA 291
Ollerenshaw v The Uniting Church in Australia Property Trust (NSW) [2017] NSWSC 1637
2 citations
Jump To
Cite 1 - [2017] NSWSC 1637
Cite 2 - [2017] NSWSC 1637
Rossi v Westbrook [2013] QCA 102
2 citations
Jump To
Cite 1 - [2013] QCA 102
Cite 2 - [2013] QCA 102
Suncare Constructions Australia Pty Ltd v Gainspace (Mackay) Pty Ltd [2016] QSC 67
2 citations
Jump To
Cite 1 - [2016] QSC 67
Cite 2 - [2016] QSC 67
Treadstone Developments Pty Ltd v The Salisbury Group Pty Ltd [2014] QSC 109
2 citations
Jump To
Cite 1 - [2014] QSC 109
Cite 2 - [2014] QSC 109
Zenith Corporation Australia Pty Ltd v Optus Mobile Pty Ltd [2020] NSWSC 1110
2 citations
Jump To
Cite 1 - [2020] NSWSC 1110
Cite 2 - [2020] NSWSC 1110

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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