ADC Developments Pty Ltd v Haddad [2026] NSWDC 116

Catchwords: SECURITY FOR COSTS – dismissal of proceedings if security not paid – principles applicable District Court New South Wales Medium Neutral Citation: ADC Developments Pty Ltd v Haddad [2026] NSWDC 116 Hearing dates: 23 April 2026 Date of orders: 23 April 2026 Decision date: 23 April 2026 Jurisdiction: Civil Before: Dicker SC DCJ Decision: In relation to the Notice of Motion filed on 20 February 2026: 1. Pursuant to Part 42.21 ( 3) of the Uniform Civil Procedure Rules 2005 ( NSW), the proceedings are dismissed. 2. The plaintiff is to pay the defendant ’ s costs of the Notice of Motion and of the proceedings as agreed or assessed. Note: An order for the payment of security for costs made on 12 December 2025 has not been complied with by the plaintiff. Catchwords: SECURITY FOR COSTS – dismissal of proceedings if security not paid – principles applicable Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Fairey v Fairey (No 2) [2000] NSWCA 173 Idoport Pty Ltd v National Australia Bank [2002] NSWSC 18 Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271 Pi v Zhou (No 3) [2017] NSWCA 224 Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377 Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206 Category: Principal judgment Parties: ADC Developments Pty Ltd (Plaintiff) Nicole Haddad (Defendant) Representation: Counsel: Ex parte (Plaintiff) B Nolan (Defendant) Solicitors: Ex parte (Plaintiff) Kuschert Law Group Pty Ltd (Defendant) File Number(s): 2024/00218531 Publication restriction: No JUDGMENT – EX TEMPORE Before the Court for determination is a Notice of Motion filed on 20 February 2026 by the defendant seeking orders pursuant to Part 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW), dismissing the proceedings with consequent costs relief. In support of the application, the defendant read the affidavits of Anthony Kuschert dated 20 February 2026, 3 March 2026, 18 March 2026 and 23 March 2026. The plaintiff, ADC Developments Pty Ltd, was called outside the Court today and there was no appearance by or on its behalf. The matter came on for hearing today in circumstances where it had been adjourned a number of times at the request of the plaintiff due to alleged illness on the part of its sole director, Mr Dabit. I have been informed by Ms Nolan of counsel, who appears for the defendant, that Mr Dabit indicated that he was involved in a Local Court appearance today. However, there has been no communication with the Court about that, nor has there been an application for an adjournment. This would have been the third or fourth time in which, if an adjournment had been sought, there would have been a potential delay. The background to the matter is relevant. By a Statement of Claim filed on 28 August 2024, the plaintiff company pleaded that it had been contracted to construct two separate duplex developments for the defendant at Plumpton in Sydney. It was pleaded that the sum of about $242,000 was owing by the defendant to the plaintiff. Originally, proceedings had been commenced in the New South Wales Civil and Administrative Tribunal (NCAT) . On 29 May 2024, Senior Member Charles had ordered the transfer of the matter to the District Court. Thereafter, a number of directions were made by the Judicial Registrar for the filing of evidence. On 3 September 2025, the Judicial Registrar had listed the matter for hearing on 9 March 2026 with an estimate of four days. A number of orders extending the time for the filing of evidence were granted. In due course, the defendant filed a Notice of Motion seeking an order for security for costs against the plaintiff. On 12 December 2025, the matter came before Weber SC DCJ, and his Honour ordered that the plaintiff provide security for the defendant ’ s costs of the proceedings in the sum of $80,000, such security to be provided within 1 4 days of the making of the order, and in the event of default in compliance with that order, that the proceedings be stayed. The evidence before me establishes to my satisfaction: That Mr Dabit at all relevant times was the sole director and secretary of the plaintiff; T hat no amount was paid pursuant to the order s of Weber SC DCJ, and , accordingly, the proceedings are stayed; On 22 December 2025, the plaintiff filed a Notice of Intention to Appeal from the orders of Weber SC DCJ to the Court of Appeal; On 30 December 2025, the plaintiff served the Notice of Intention to Appeal on the defendant; There is no evidence before me that the plaintiff has advanced his intended appeal or has served a notice seeking leave to appeal within three months of the material date; On a number of occasions Mr Dabit, on behalf of the plaintiff, has appeared before me seeking adjournments , as I have indicated above. These were granted. Accordingly, the defendant seeks to move today on the Notice of Motion filed on 20 February 2026. Part 42.21 of the Uniform Civil Procedure Rules provides as follows. “4 2.21 Security for costs (1) If, in any proceedings, it appears to the court on the application of a defendant— (a) that a plaintiff is ordinarily resident outside Australia, or (b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or (c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, or (f) that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given. … (2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct. (3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed. (4) This rule does not affect the provisions of any Act under which the court may require security for costs to be given.” The Court, accordingly, has a discretion whether to dismiss proceedings for failure by a party to comply with an order for the payment of security for costs. The relevant principles applicable have been considered a number of times by appella te courts. In Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377, Tobias JA considered the principles applicable at paras 23 and following. H is Honour noted that the principles were considered by the Court of Appeal in Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271, where their Honours referred with approval to the comments made by Einstein J at first instance in Idoport Pty Ltd v National Australia Bank [2002] NSWSC 18 at [24]. There, Einstein J accepted as correct the defendant ’ s submission that the following five factors were required to be taken into account in determining whether the Court should exercise its discretion to dismiss proceedings at first instance for failure to comply with an order for the payment of security for costs: The period that has elapsed since the security was ordered; The fact that the plaintiff has been on notice of the application for dismissal; The seeming inability of the plaintiff to further fund the proceeding; The prejudice to the defendant; and The position of the Court. Einstein J indicated that although those five matters were appropriate to be taken into account in the exercise of the relevant discretion, he acknowledged that the list was not exhaustive and that all relevant circumstances were required to be taken into account, including with the Court straining, wherever practicable, consistently with the interests of justice , to avoid taking what was described by Tobias JA at [25] in Gordian Runoff as “ t he radical step of denying a plaintiff its day in court ” . Tobias JA indicated that the proper exercise of the Court ’ s discretion required all relevant factors to be weighed in balance, the ultimate decision reflecting the interest s of justice: at [25]. Tobias JA also quoted at [26] the comments of Mason P in Idoport on appeal, that there was no minimum period established by the legislation, rules or practice within which an application for dismissal might be made following default in compliance with an order for payment of security. It was said that the judicial discretion was uncontrolled, was broad and was unfettered by any express limitations. Tobias JA indicated in para 33 : “ The Court should avoid allowing a matter to lie ‘ mouldering in its lists ’” . In Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206, the Court of Appeal accepted that it had been the rule for a long time that proceedings may be dismissed if security for costs was not provided. The importance of unexplained delay and the absence of utility were emphasised by Brereton JA at [2]. The width of the power to make the order was emphasised by Mitchelmore JA at [ 54 ] . In Pi v Zhou (No 3) [2017] NSWCA 224, Payne JA considered the principles at paras 24 and following. His Honour quoted with approval the comments of Tobias JA in Porter v Gordian Runoff. His Honour also agreed that the factors identified by Einstein J in Idoport were not exhaustive . He held that the Court should strain consistently with the interests of justice to avoid taking the step of denying a party its day in court unless that was necessary. His Honour then considered the five factors set out by Einstein J in Idoport at first instance. I do the same: The period that has elapsed since the security was ordered. Weber SC DCJ ordered that security be provided by the plaintiff within 14 days on 12 December 2025. Accordingly, security should have been provided by the end of December 2025. Over three and a half months have elapsed since that time. In my view, that is a sufficient period of time for the plaintiff to have complied with the order to provide security if the plaintiff was willing and able to do so; The fact that the plaintiff has been on notice of the application for dismissal ‑ it is clear from the history before the Court that Mr Dabit, as the directing mind and will of the plaintiff, has been on notice since the filing of the Notice of Motion on 20 February 2026 that the application was made and has attended a number of times before the Court; T he seeming inability of the plaintiff to further fund the proceedings ‑ although an application giving Notice of the Intention to Appeal was filed and served by the plaintiff, it seems on the evidence that the plaintiff is not in the position to pay the security. Also, further steps have not been advanced in relation to the purported appeal from the orders of Weber SC DCJ. One would have expected by this time that an Application for Leave to Appeal would have been filed with a white book if the plaintiff was serious in relation to the appeal. The indications are that the plaintiff cannot pay the security; The prejudice to the defendant. I take into account that these proceedings have been on foot since August 2024 in this Court, with the matter having been extant through an application in NCAT prior to that time. Extensive orders were made for the filing of evidence and the defendant, obviously, seeks to have the matter resolved. While there is no evidence of actual prejudice to the defendant of a further delay or adjournment, the defendant is an individual and not a corporate entity, and having litigation hanging over her head, obviously, would be undesirable to her. I agree with the comment made by Payne JA in Pi that on the facts of this case, there is a clear public interest in the final determination of the litigation; The position of the Court. This is different to Pi , where the proceedings had been stayed for some seven years. Here, the proceedings have only been stayed for three and a half months. However, the facts have to be seen in the circumstances of Mr Dabit on behalf of the plaintiff not having advanced his contemplated appeal. All of the above factors in my view lean towards the orders sought by the defendant being made. In para 27 of Pi , Payne JA emphasises that even if the five factors are established, the Court retains a discretion whether to summarily dismiss the proceedings for failing to lodge the security for costs . As his Honour indicated, which is reflected in the earlier cases, summary dismissal of proceedings is “ an extreme measure ” , and in general terms is, as was described by his Honour in para 29, a “ radical step ” . However, the Court should not shrink from making the order where all the factors point to there being no utility in keeping the proceedings on foot. I agree with respect with the comments of Mason P in Fairey v Fairey (No 2) [2000] NSWCA 173 at [52] that the power to dismiss proceedings summarily serves the dual purpose of ensuring fairness to litigants and preserving the integrity of the judicial system. It protects a defendant from the consequences of delay, whether that be financial, psychological or otherwise, and also promotes the expeditious resolution of cases which assists the interests of litigants generally. I have carefully reviewed the evidence placed before me in relation to the application . I n my view, all the five factors referred to by Einstein J in Idoport , which were adopted on appeal in that case , and in the later appella te cases referred to , and the general discretionary considerations , strongly lean towards the orders sought in the Notice of Motion being made as bringing the litigation to finality in the interests of justice. Accordingly, the orders I make are as follows : In relation to the Notice of Motion filed on 20 February 2026: Pursuant to Par t 42.21(3) of the Uniform Civil Procedure Rules 2005 (NSW) , the proceedings are dismissed; The plaintiff is to pay the defendant ’ s costs of the Notice of Motion and of the proceedings as agreed or assessed. Note: An order for the payment of security for costs made on 12 December 2025 has not been complied with by the plaintiff. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2026