Blue Oil Energy Pty Limited v Tan [2014] NSWCA 81

Blue Oil Energy Pty Limited v Tan [2014] NSWCA 81

Leave to appeal was refused because none of the proposed grounds showed an arguable material error in the primary judge's discretionary security for costs orders. The findings as to inability to pay were open, the proposed subordination and cash deposit did not provide adequate security for the respondents' costs, the applicants had accepted or failed to raise several matters below, and neither UCPR r 42.21 nor Corporations Act s 1335 required security to be ordered only in the least disadvantageous form.

Jurisdiction
Australia
Judgment Date
26 March 2014
Procedural Posture
Summons for Leave to Appeal From Security for Costs Orders / Leave to Appeal Determined on the Papers
Outcome
Summons for leave to appeal dismissed with costs.
Legal Topics
['security for Costs' 'reason to Believe Plaintiff Unable to Pay Costs' 'form of Security' 'stay of Proceedings for Non Provision of Security' 'new Points on Appeal' 'interlocutory Appeals']
['civil Procedure' 'costs' 'appeal and New Trial' 'corporations'] ['security for Costs' 'reason to Believe Plaintiff Unable to Pay Costs' 'form of Security' 'stay of Proceedings for Non Provision of Security' 'new Points on Appeal' 'interlocutory Appeals']

Case Brief

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Procedural Posture

Summons for Leave to Appeal From Security for Costs Orders / Leave to Appeal Determined on the Papers

Legal Issues

  1. 1 ["Whether the primary judge erred in finding reason to believe Blue Oil would be unable to meet an adverse costs order despite Pure Energy's proposed subordination of debt." 'Whether the stay order improperly stayed proceedings against defendants who had not sought security for costs.' 'Whether security could only be ordered in the form least disruptive or disadvantageous to Blue Oil and Blue Diamond.' "Whether the primary judge failed to take into account Blue Diamond's alleged future income under the OMM Agreement." 'Whether a $2,000,000 cash security deposit in favour of Holdings and Pioneer Energy should have affected the security order.' 'Whether security should not have been ordered because natural person plaintiffs in the main proceedings were not subject to a security application.' 'Whether leave to appeal should be granted from an interlocutory decision concerning practice and procedure.']

Ratio Decidendi

Leave to appeal was refused because none of the proposed grounds showed an arguable material error in the primary judge's discretionary security for costs orders. The findings as to inability to pay were open, the proposed subordination and cash deposit did not provide adequate security for the respondents' costs, the applicants had accepted or failed to raise several matters below, and neither UCPR r 42.21 nor Corporations Act s 1335 required security to be ordered only in the least disadvantageous form.

Court Disposition

Summons for leave to appeal dismissed with costs.

Orders

  • ['The summons for leave to appeal filed on 19 December 2013 is dismissed with costs.']