The Trustee for Aqua Stop Trust v Mortlake Constructions Pty Ltd [2023] NSWSC 161

The Trustee for Aqua Stop Trust v Mortlake Constructions Pty Ltd [2023] NSWSC 161

Further security for costs was refused because the additional costs appeared to relate largely to the builders' cross-claim rather than the subcontractor's claim; the cross-claim of about $27 million dwarfed the subcontractor's claim of about $754,000, placing the plaintiff effectively in the position of a defendant; the total security sought would be disproportionate at about 90% of the plaintiff's claim; and the application was brought two and a half years after security had been provided, after the subcontractor had continued to prosecute its claim and incur costs.

Jurisdiction
Australia
Judgment Date
24 February 2023
Procedural Posture
Application for Additional Security for Costs / Procedural Ruling on Defendants' Notice of Motion Filed on 10 November 2022
Outcome
Application for further security for costs dismissed.
Legal Topics
['additional Security for Costs' 'cross Claim and Set Off' 'discretion Under UCPR R 42.21' 'proportionality of Security' 'timing of Security Application']
['civil Procedure' 'security for Costs' 'technology and Construction'] ['additional Security for Costs' 'cross Claim and Set Off' 'discretion Under UCPR R 42.21' 'proportionality of Security' 'timing of Security Application']

Case Brief

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Procedural Posture

Application for Additional Security for Costs / Procedural Ruling on Defendants' Notice of Motion Filed on 10 November 2022

Legal Issues

  1. 1 ['Whether the defendants/cross-claimants should be granted additional security for costs after prior security of $300,000 had been ordered and provided.' 'Whether an undertaking not to press the cross-claim if security was not provided and the proceedings were stayed or dismissed entitled the defendants to security for the costs of the cross-claim.' "Whether the additional security sought was proportionate, having regard to the plaintiff's claim and the defendants' cross-claim." 'Whether the timing of the application weighed against ordering further security.']

Ratio Decidendi

Further security for costs was refused because the additional costs appeared to relate largely to the builders' cross-claim rather than the subcontractor's claim; the cross-claim of about $27 million dwarfed the subcontractor's claim of about $754,000, placing the plaintiff effectively in the position of a defendant; the total security sought would be disproportionate at about 90% of the plaintiff's claim; and the application was brought two and a half years after security had been provided, after the subcontractor had continued to prosecute its claim and incur costs.

Court Disposition

Application for further security for costs dismissed.

Orders

  • ["Dismiss the defendant's notice of motion filed on 10 November 2022." "Order the defendant to pay the plaintiff's costs of the motion."]