(1) the exceptional nature of the jurisdiction to reopen and set aside, rendering the set aside motion reasonably unlikely to succeed,
(2) Mr May's well documented resistance on behalf of the applicant company to any inquiry or notice to produce in respect of its financial position, there being no useful information available from the corporate regulator regarding the company's capacity to meet any order for costs, and
(3) the facts that the company does not own the subject land, and that nett value is unknown, as it is subject to a registered mortgage.
33 There was some discussion at the hearing as to whether Mr May was actually refusing to produce the company's records, or just unable to produce them. His stated position certainly moved from declining to produce to claiming to have no relevant documents, and he appeared to be saying that he could not match his available material to the relevant dates nominated in the notice to produce. The Corporations Law does not exempt a company such as the applicant from keeping proper financial records even though there are exemptions from filing them.
34 During argument before the Acting Registrar, Mr May made the rather impromptu suggestion that he might personally guarantee the company's liability for costs, but the Council was not prepared to agree to that in the absence of proper material upon which to assess his capacity to pay, and the uncertainty as to whether he was offering his guarantee as an individual citizen or as a director of the company (T25.2.09, p10, LL21-42, and p11, L35-p12, L18).
The power to review the Registrar's decision
35 Uniform Civil Procedure Rule 49.19 provides:
"If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit."
36 Uniform Civil Procedure Rule 49.20 requires the application for review to be made by Notice of Motion filed within 28 days of the date of the order challenged.
37 I reviewed and applied the authorities on such applications in Mir v Valuer General ("Mir") [2009] NSWLEC 15, especially Tomko v Palasty (No.2) [2007] NSWCA 369; 71 NSWLR 61.
38 It is not necessary for the applicant for review to prove an error of law; there could be changed circumstances or fresh evidence, and there could be an argument resting on the "interests of justice in the circumstances of the case". The court must be satisfied on review that the order (or direction etc.) challenged was "reasonable". Connell v Armidale City Council [1995] NSWLEC 110. I overturned the order in Mir in all the circumstances of that case.
Consideration
39 Immediately after Mr May filed the applicant's set-aside motion (on 19 December) the respondent wrote to him (on 22 December) suggesting that it had no foundation, and would not succeed, and that, if successful and proven correct, the Council would seek an order for costs. It asked Mr May to provide some level of comfort that the company could meet such a costs order. It subsequently served on him a notice to produce. The notice was in no way onerous or oppressive, but Mr May challenged it on 12 February 2009.
40 On 18 February 2009, when he said he had no documents to produce, the respondent Council became concerned at the apparent lack of depth in the applicant's filed submissions, and decided to seek the security order.
41 Mr May continued to resist production of financial information, but made no substantive submissions, apart from suggesting that the respondent's actions always amount to a "denial of natural justice" and complaining about the motion's lateness ("12th hour" - see T27.4.09, p22).
42 The Acting Registrar granted the respondent's motion, and also ordered the applicant to pay a fixed sum of $2,500 in respect of the respondent's costs of appearances before her on 12, 18 and 25 February.
43 Making the security order was clearly reasonable in all the circumstances, and I agree with the Acting Registrar (par [22] of her judgment) that it will not "operate to prevent the applicant pursuing a reasonable claim". Mr May did not argue before me that the security order is oppressive.
44 This is entirely personal litigation with none of the elements of "public interest litigation" - see Teoh at [127]-[133]. Although he repeated his argument that the order for security is actually a "retrospective costs order", its true nature has been explained to him on several occasions, and it does not prejudge any question of costs which might arise after the set-aside motion has been determined. (Regrettably, Mr May persistently resists obtaining legal representation, and the court suspects he has not obtained any professional legal advice at all on his situation).
45 No grounds have been argued for any order to be made transferring the proceedings to the Supreme Court. All the motions brought since November 2008 come within the statutory jurisdiction of this court. Mr May may well decide to bring separate Supreme Court proceedings to pursue his rather unusual damages claim against the Council, but the current matters before this court should remain here.
46 The essence of the Acting Registrar's security order should remain, including its self-executing element, but I accept Ms Carpenter's submission that the self-executing dismissal of the set-aside motion should be expressly accompanied by an order for costs in favour of the respondent. That being so, I do not believe it appropriate that the period within which the bank guarantee should be obtained should be shortened to 48 hours as she submitted (T27.4.09, p40), even though the relevant order was not stayed by Biscoe J and should have been complied with some months ago.
47 The respondent has also asked for a further fixed-amount costs order in its favour, in respect of this Notice of Motion, and I consider that appropriate. Ms Carpenter asked for $6,275, which seems reasonable, but it includes the costs of the hearing before Biscoe J on 2 April. I consider that each party should pay its own costs of that day, so I will specify in the costs order an amount of $5,000.
48 The orders of the court will, therefore, be:
1. That the orders made by the Acting Registrar on 25 February 2009 and by Biscoe J on 2 April 2009 be vacated.
2. That the applicant's Notice of Motion of 24 March 2009 be dismissed.
3. That the applicant provide by 31 August 2009 security for costs of the respondent in the sum of $15,175 by way of unconditional bank guarantee in a form acceptable to the Registrar.
4. That the applicant pay the following costs to the respondent by 31 August 2009:
(a) $2,500 in respect of the proceedings before the Acting Registrar on 12, 18 and 25 February 2009.
(b) $5,000 in respect of the Notice of Motion of 24 March heard by Sheahan J on 27 April 2009.
5. That each party pay its own costs of the hearing before Biscoe J on 2 April 2009.
6. That, if the applicant fails to provide the security for costs as provided in Order 3 by 31 August 2009, the applicant's Notice of Motion of 19 December 2008 is dismissed with costs, such costs to be agreed or assessed according to law.
7. That the Notice of Motion of the respondent dated 12 December 2008 be stood over to the Registrar's call over list on Friday 18 September 2009, to be set down for hearing, in the absence of agreement being reached between the parties by that date on the question of the costs of the applicant's unsuccessful appeal under s 56A of the Land and Environment Court Act 1979.
8. That, if the applicant complies with Order 3 by 31 August 2009, its Notice of Motion of 19 December 2008 be included in the Registrar's call over list on Friday 18 September 2009 to be also set down for hearing.