Agricultural and Rural Finance Pty Ltd v John Edward Atkinson & Ors [2004] NSWSC 437

Agricultural and Rural Finance Pty Ltd v John Edward Atkinson & Ors [2004] NSWSC 437

The applicant established, based on credible testimony and available financial evidence, that the cross-claimant would not be able to pay a costs order if so ordered. The applicant took all available steps to obtain recent financial materials, which were not produced, warranting an adverse inference. The quantum of security can be estimated sufficiently on the available evidence. Accordingly, the applicant is entitled to an order for security for costs.

Parties
Applicant/second Cross Defendant: Stephen Murray Lloyd; Respondent/second Cross Claimant: Oceania Agriculture Pty Ltd (OAL)
Jurisdiction
Australia
Judgment Date
18 May 2004
Procedural Posture
Security for Costs Application / Interlocutory Application in Ongoing Commercial Proceedings
Outcome
Security for costs ordered in favour of the applicant.
Legal Topics
Security for Costs, Cross Claims, Corporations Law, Costs Orders
Civil Procedure Commercial Law Equity Security for Costs Cross Claims Corporations Law Costs Orders

Case Brief

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Parties

Stephen Murray Lloyd

Applicant/second Cross Defendant

Oceania Agriculture Pty Ltd (OAL)

Respondent/second Cross Claimant

Procedural Posture

Security for Costs Application / Interlocutory Application in Ongoing Commercial Proceedings

Legal Issues

  1. 1 Whether the applicant is entitled to security for costs against the cross-claimant.
  2. 2 Whether quantum of security for costs can be reasonably assessed in this complex proceeding.
  3. 3 Whether an adverse inference should be drawn from the cross-claimant's failure to produce recent financial statements.

Ratio Decidendi

The applicant established, based on credible testimony and available financial evidence, that the cross-claimant would not be able to pay a costs order if so ordered. The applicant took all available steps to obtain recent financial materials, which were not produced, warranting an adverse inference. The quantum of security can be estimated sufficiently on the available evidence. Accordingly, the applicant is entitled to an order for security for costs.

Court Disposition

Security for costs ordered in favour of the applicant.

Orders

  • Order for security for costs in the sum of $50,000 or as the Court thinks fit.
  • Stay of the second cross-claim until security is paid.