Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 7:

1. This judgment involves an application by the defendants seeking security for costs.

2. The plaintiff/respondent is DRE Capital Pty Ltd (DRE Capital). It is represented by R Glasson of counsel. The first defendant/second applicant is Wixels Property Holdings Pty Ltd (Wixels). The second defendant/first applicant is Rosemarie Brenda Guerin. Both defendants are represented by A P Cheshire SC with M McGirr of counsel.

3. The defendants relied on the affidavit of Jenny Needham affirmed on 30 April 2025 (Needham affidavit). The plaintiff relied upon the affidavit of Vincent Zhiqing Zhu dated 23 May 2025 (Zhu affidavit) and the affidavit of Yucheng Yang (Mr Yang) dated 18 June 2025 (Yang affidavit).

Background

4. On or around 20 December 2021, KD Funds Pty Ltd (KD Funds), as trustee of the Fairfax Road Trust, provided $1,392,646 to the first defendant in order for it to settle the purchase of a property, XX Fairfax Road, Bellevue Hill. At this time, KD Funds and the first defendant entered into a Secured Loan Agreement, guaranteed by the second defendant. The loan went into default in March 2022. The plaintiff replaced KD Funds as trustee of the Fairfax Road Trust in November 2022, and the mortgage was transferred to it.

The amended notice of motion

5. By an amended Notice of Motion (NOM) filed 5 May 2025, the defendants now seek the following:

1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.21 and or s 1335 of the Corporations Act 2001 (Cth) (Corporations Act), the plaintiff is to provide security for the defendants' costs by paying the sum of $200,000 or such other amount as the Court deems appropriate, by way of payment into Court by otherwise providing security of that value within 14 days of the date of these Orders.

2) If the security referred to in above order 3 is not provided within 14 days, the claim be dismissed pursuant to r 42.21(3) UCPR.

3) In the alternative to above order 4, if the security referred to in order 3 is not provided within 14 days of the date of these orders, the plaintiff's claim be stayed until such time as the security is provided.

6. At the outset of this hearing, the plaintiff accepted that par 11 of the statement of claim requires amendment. I granted leave to the plaintiff to file and serve an amended statement of claim within 28 days. I made an order that the plaintiff is to pay the defendants' costs thrown away by the amendments. The only issue that is left to decide is whether DRE Capital should be required to lodge security for costs.

The pleadings

7. On 3 April 2025, the plaintiff filed its Statement of Claim (SOC) seeking recovery of the loan of $1,392,646 plus interest for a total of $2,853,512.57, or alternatively, damages.

8. The entitlement to relief is said to arise under:

1) a Secured Loan Agreement dated 20 December 2021 (SLA);

2) a General Security Deed (GSD); and

3) a registered Mortgage over the title of Unit XX, XX Fairfax Road, Bellevue Hill NSW (Property)

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1987ce492a8347bab765688c)

Disclaimer: Curated by HT Syndication.