Christopher Ronald Fitzsimons v Commonwealth Bank of Australia [2011] NSWSC 1475

Christopher Ronald Fitzsimons v Commonwealth Bank of Australia [2011] NSWSC 1475

Security for costs was appropriate only against the third plaintiff because she was resident in Singapore and there was no evidence that security against her would stultify the proceedings; the Court accepted the plaintiffs' analogy to Pt 42 r 21 and declined to order security against the Australian resident first and second plaintiffs. The amount was reduced from $100,000 to $75,000 having regard to challenges to the Bank's estimate of future costs. The extraordinary history of repeated defective pleadings and costs thrown away justified ordering that the costs awarded on 26 August 2011 be assessed and paid forthwith. Because only one of three plaintiffs was subject to the security...

Jurisdiction
Australia
Judgment Date
25 November 2011
Procedural Posture
Interlocutory Applications for Security for Costs and Costs Payable Forthwith / Amended Notice of Motion Heard in the Equity Division Commercial List; Ex Tempore Decision
Outcome
Security for costs ordered against the third plaintiff only; stay ordered if security not provided; prior costs ordered to be assessed and paid forthwith; plaintiffs ordered to pay one-third of the defendant's costs of the motion; directions made.
Legal Topics
['inherent Jurisdiction to Order Security for Costs' 'security Against Multiple Plaintiffs' 'plaintiff Ordinarily Resident Outside New South Wales' 'costs Payable Forthwith' 'pleading History and Amendments']
['civil Procedure' 'costs' 'security for Costs'] ['inherent Jurisdiction to Order Security for Costs' 'security Against Multiple Plaintiffs' 'plaintiff Ordinarily Resident Outside New South Wales' 'costs Payable Forthwith' 'pleading History and Amendments']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Applications for Security for Costs and Costs Payable Forthwith / Amended Notice of Motion Heard in the Equity Division Commercial List; Ex Tempore Decision

Legal Issues

  1. 1 ['Whether security for costs should be ordered where one of multiple plaintiffs is resident overseas and the claims are said to be intrinsically intertwined.' 'Whether any security should be ordered only against the non-resident third plaintiff.' "Whether the plaintiffs' pleading history and the costs already ordered justified an order that those costs be assessed and paid forthwith." 'What costs order should be made on the security for costs motion.']

Ratio Decidendi

Security for costs was appropriate only against the third plaintiff because she was resident in Singapore and there was no evidence that security against her would stultify the proceedings; the Court accepted the plaintiffs' analogy to Pt 42 r 21 and declined to order security against the Australian resident first and second plaintiffs. The amount was reduced from $100,000 to $75,000 having regard to challenges to the Bank's estimate of future costs. The extraordinary history of repeated defective pleadings and costs thrown away justified ordering that the costs awarded on 26 August 2011 be assessed and paid forthwith. Because only one of three plaintiffs was subject to the security...

Court Disposition

Security for costs ordered against the third plaintiff only; stay ordered if security not provided; prior costs ordered to be assessed and paid forthwith; plaintiffs ordered to pay one-third of the defendant's costs of the motion; directions made.

Orders

  • ['The third plaintiff is to provide security for costs in the amount of $75,000 by way of either payment into Court of that amount, or by way of bank guarantee in a form acceptable to the Registrar by no later than 31 December 2011.' 'Should the third plaintiff fail to provide the security by 31 December 2011 the...