Now Electrical Projects Pty Ltd v Electro Plus Services Pty Ltd [2022] NSWDC 77

Now Electrical Projects Pty Ltd v Electro Plus Services Pty Ltd [2022] NSWDC 77

Although the applicant did not act unreasonably in bringing the security for costs application because there were objective indicia suggesting a strong possibility that the respondent might not satisfy an adverse costs order, the application was almost certain to have failed as a matter of discretion. The application was delayed until shortly before the hearing, caused prejudice, concerned a cross-claim partly defensive in nature, sought a stay close to the scheduled hearing, was not directed to a claim shown to lack bona fides or reasonably arguable prospects, and was based on an unconvincing explanation for its timing. Having withdrawn the discrete motion after causing the respondent to...

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Civil Proceeding Concerning a Contractor and Sub Contractor Dispute in Connection With the Supply of Electrical Goods and Services / Interlocutory Motions Concerning Security for Costs, a Notice to Produce, and Costs After Withdrawal of the Security for Costs Application
Outcome
The plaintiff/cross-defendant's notice of motion for security for costs was dismissed after withdrawal, with costs payable to the defendant/cross-claimant; the defendant/cross-claimant's notice of motion to set aside the notice to produce was dismissed with no order as to costs.
Legal Topics
['security for Costs' 'withdrawal of Notice of Motion' 'costs of Interlocutory Motion' 'notice to Produce' 'cross Claim']
['civil Procedure' 'costs'] ['security for Costs' 'withdrawal of Notice of Motion' 'costs of Interlocutory Motion' 'notice to Produce' 'cross Claim']

Case Brief

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Procedural Posture

Civil Proceeding Concerning a Contractor and Sub Contractor Dispute in Connection With the Supply of Electrical Goods and Services / Interlocutory Motions Concerning Security for Costs, a Notice to Produce, and Costs After Withdrawal of the Security for Costs Application

Legal Issues

  1. 1 ['Whether the plaintiff/cross-defendant should receive costs of its withdrawn application for security for costs.' 'Whether the plaintiff/cross-defendant acted unreasonably in bringing the security for costs application.' 'Whether the security for costs application was almost certain to have failed if fully argued.' "What costs order should be made in relation to the defendant/cross-claimant's application to set aside the notice to produce."]

Ratio Decidendi

Although the applicant did not act unreasonably in bringing the security for costs application because there were objective indicia suggesting a strong possibility that the respondent might not satisfy an adverse costs order, the application was almost certain to have failed as a matter of discretion. The application was delayed until shortly before the hearing, caused prejudice, concerned a cross-claim partly defensive in nature, sought a stay close to the scheduled hearing, was not directed to a claim shown to lack bona fides or reasonably arguable prospects, and was based on an unconvincing explanation for its timing. Having withdrawn the discrete motion after causing the respondent to...

Court Disposition

The plaintiff/cross-defendant's notice of motion for security for costs was dismissed after withdrawal, with costs payable to the defendant/cross-claimant; the defendant/cross-claimant's notice of motion to set aside the notice to produce was dismissed with no order as to costs.

Orders

  • ["The cross-defendant's notice of motion dated 10 March 2022 is dismissed." "The cross-defendant pay the cross-claimant's costs of and occasioned by the motion." "The cross-claimant's notice of motion dated 17 March 2022 is dismissed with no order as to costs."]