CBX2 Pty Limited v National Australia Bank (No 2) [2015] NSWSC 1969

CBX2 Pty Limited v National Australia Bank (No 2) [2015] NSWSC 1969

Because the jurisdictional fact for security for costs was satisfied and CBX2 failed to discharge its onus of making full and frank disclosure or providing straightforward, unambiguous and fairly compelling evidence that security would stultify the proceedings or that the Bank caused its impecuniosity, there was no discretionary reason to refuse security. On the costs evidence, adjusted for discovery and the fact that security need not cover all recoverable costs, security of $250,000 was appropriate.

Jurisdiction
Australia
Judgment Date
15 December 2015
Procedural Posture
Interlocutory Application for Security for Costs / Appeal From an Associate Justice Dismissing the Defendant's Application for Security for Costs
Outcome
Appeal allowed. The Associate Justice's order was set aside and CBX2 was ordered to provide security for the Bank's costs.
Legal Topics
['security for Costs' 'interlocutory Applications' 'stultification of Proceedings' 'impecuniosity' 'disclosure of Financial Position' 'costs Assessment']
['practice and Procedure' 'corporations' 'costs'] ['security for Costs' 'interlocutory Applications' 'stultification of Proceedings' 'impecuniosity' 'disclosure of Financial Position' 'costs Assessment']

Case Brief

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Procedural Posture

Interlocutory Application for Security for Costs / Appeal From an Associate Justice Dismissing the Defendant's Application for Security for Costs

Legal Issues

  1. 1 ["Whether the Associate Justice's order dismissing the defendant's application for security for costs should be set aside." "Whether, given that CBX2 could not afford to pay the Bank's costs if ordered to do so, security for costs should be ordered." 'Whether an order for security for costs would stultify the proceedings.' "Whether the Bank's alleged wrongdoing caused or materially contributed to CBX2's impecuniosity." "Whether the financial position of Mr Blinkworth, CBX2's sole director and shareholder, justified refusing security." 'What amount of security should be ordered.']

Ratio Decidendi

Because the jurisdictional fact for security for costs was satisfied and CBX2 failed to discharge its onus of making full and frank disclosure or providing straightforward, unambiguous and fairly compelling evidence that security would stultify the proceedings or that the Bank caused its impecuniosity, there was no discretionary reason to refuse security. On the costs evidence, adjusted for discovery and the fact that security need not cover all recoverable costs, security of $250,000 was appropriate.

Court Disposition

Appeal allowed. The Associate Justice's order was set aside and CBX2 was ordered to provide security for the Bank's costs.

Orders

  • ["Set aside the order of the Associate Justice dismissing the defendant's application for security for costs." "CBX2 Pty Limited is to provide security for National Australia Bank Limited's costs in the sum of $250,000 up until the time when the parties' evidence in chief and in reply is complete." 'The proceedings...