Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1611

Sergienko v AXL Financial Pty Ltd [2019] NSWSC 1611

The cross-claimants are corporations with insufficient evidence of assets and may not be able to meet an adverse costs order; the application for security was timely, claim is not purely defensive, and quantum sought is reasonable. Security for costs should be ordered under r 42.21 of UCPR.

Parties
Plaintiff/second Cross Defendant on the Second Cross Claim: Sergie Sergienko; First Defendant: AXL Financial Pty Ltd; Second Defendant: Oliver Roths; Third Defendant: Roths Holdings Australia Pty Ltd; Fourth Defendant/cross Claimant on Second Cross Claim: IWC Industries Pty Ltd; Fifth Defendant/cross Claimant on Second Cross Claim: DK Excavation and Concreting Pty Ltd
Jurisdiction
Australia
Judgment Date
20 November 2019
Procedural Posture
Notice of Motion for Security for Costs / Interlocutory/procedural Ruling
Outcome
Security for costs ordered against cross-claimants. Cross-claim stayed if security not provided. Cross-claimants to pay costs of motion.
Legal Topics
Security for Costs, Corporations, Priority Disputes, Trusts, Equitable Interests
Civil Procedure Equity Security for Costs Corporations Priority Disputes Trusts Equitable Interests

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Parties

Sergie Sergienko

Plaintiff/second Cross Defendant on the Second Cross Claim

AXL Financial Pty Ltd

First Defendant

Oliver Roths

Second Defendant

Roths Holdings Australia Pty Ltd

Third Defendant

IWC Industries Pty Ltd

Fourth Defendant/cross Claimant on Second Cross Claim

DK Excavation and Concreting Pty Ltd

Fifth Defendant/cross Claimant on Second Cross Claim

Procedural Posture

Notice of Motion for Security for Costs / Interlocutory/procedural Ruling

Legal Issues

  1. 1 Whether cross-claimants should be ordered to provide security for costs under r 42.21 of UCPR or s 1335 of Corporations Act
  2. 2 Whether the cross-claim is defensive in nature
  3. 3 Quantum and manner of provision of security for costs

Ratio Decidendi

The cross-claimants are corporations with insufficient evidence of assets and may not be able to meet an adverse costs order; the application for security was timely, claim is not purely defensive, and quantum sought is reasonable. Security for costs should be ordered under r 42.21 of UCPR.

Court Disposition

Security for costs ordered against cross-claimants. Cross-claim stayed if security not provided. Cross-claimants to pay costs of motion.

Orders

  • Cross-claimants to provide security for cross-defendant's costs of second cross-claim in sum of $60,000 within 28 days, by unconditional bank guarantee or payment into court.
  • If security not provided within 28 days, second cross-claim stayed until further order.