888 Projects Pty Ltd (Receivers and Managers Appointed) (ACN 121 369 793) v Bank of Western Australia Ltd (ACN 050 494 454) [2010] FCA 296

888 Projects Pty Ltd (Receivers and Managers Appointed) (ACN 121 369 793) v Bank of Western Australia Ltd (ACN 050 494 454) [2010] FCA 296

The plaintiff's parlous financial position, including a prima facie case of insolvency and credible evidence that it would be unable to meet a costs order, justified further security for costs. In assessing security for the undertaking as to damages, the Court considered the uncertainties and vicissitudes of the development project and the likely difficult-to-quantify losses from delay in the bank realising its security, making $250,000 not unreasonable and $50,000 a fair and reasonable additional amount for costs security.

Jurisdiction
Australia
Judgment Date
16 March 2010
Procedural Posture
Practice and Procedure; Security for Costs and Security for Undertaking as to Damages / Defendants' Notice of Motion for Further Security for Costs and Security for the Plaintiff's Undertaking as to Damages
Outcome
Motion granted in part as to further security for costs and granted as to security for the undertaking as to damages; proceedings to be stayed if security is not provided.
Legal Topics
['further Security for Costs' 'security for Undertaking as to Damages' 'interlocutory Undertakings in Lieu of Injunction' 'receivership' 'stay for Failure to Provide Security']
['civil Procedure' 'banking and Finance' 'insolvency'] ['further Security for Costs' 'security for Undertaking as to Damages' 'interlocutory Undertakings in Lieu of Injunction' 'receivership' 'stay for Failure to Provide Security']

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Procedural Posture

Practice and Procedure; Security for Costs and Security for Undertaking as to Damages / Defendants' Notice of Motion for Further Security for Costs and Security for the Plaintiff's Undertaking as to Damages

Legal Issues

  1. 1 ['Whether the plaintiff should provide further security for costs to the defendants.' 'Whether the plaintiff should provide security for its undertaking as to damages.' 'What amount of security was just and equitable or fair and reasonable in all the circumstances.']

Ratio Decidendi

The plaintiff's parlous financial position, including a prima facie case of insolvency and credible evidence that it would be unable to meet a costs order, justified further security for costs. In assessing security for the undertaking as to damages, the Court considered the uncertainties and vicissitudes of the development project and the likely difficult-to-quantify losses from delay in the bank realising its security, making $250,000 not unreasonable and $50,000 a fair and reasonable additional amount for costs security.

Court Disposition

Motion granted in part as to further security for costs and granted as to security for the undertaking as to damages; proceedings to be stayed if security is not provided.

Orders

  • ['The plaintiff provide further security for costs of the first, second and third defendants in the sum of $50,000, such security to be provided by payment into Court or bank guarantee, or other form of security acceptable to the defendants.' "The plaintiff provide security for the plaintiff's undertaking as to...