Staway Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v Liberty Financial Pty Ltd (No. 2) [2017] NSWSC 491

Staway Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v Liberty Financial Pty Ltd (No. 2) [2017] NSWSC 491

The application for further security for costs failed because the evidence showed that an order for security in the amount considered appropriate would stultify Staway's proceedings, and independently because the issues raised by Staway would be litigated regardless through the lenders' cross-claim and related guarantee and mortgage proceedings. The notice of motion was otherwise dealt with by separate costs orders reflecting the lenders' success on mediation costs and Staway's success on the security application.

Jurisdiction
Australia
Judgment Date
02 May 2017
Procedural Posture
Application for Further Security for Costs and Costs of Mediation / Notice of Motion Filed on 7 March 2017
Outcome
Application for further security for costs dismissed; discrete costs orders made.
Legal Topics
['security for Costs' 'further Security for Costs' 'stultification of Proceedings' 'indemnity Costs' 'related Proceedings']
['civil Procedure' 'costs' 'corporations'] ['security for Costs' 'further Security for Costs' 'stultification of Proceedings' 'indemnity Costs' 'related Proceedings']

Case Brief

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Procedural Posture

Application for Further Security for Costs and Costs of Mediation / Notice of Motion Filed on 7 March 2017

Legal Issues

  1. 1 ["Whether Staway should be ordered to provide further security for the lenders' costs of preparing for and conducting the hearing." 'Whether an order for further security would stultify the proceedings.' "Whether security should be ordered where the same issues would be litigated in related proceedings regardless of any stay of Staway's claim." 'What costs orders should be made on the notice of motion.']

Ratio Decidendi

The application for further security for costs failed because the evidence showed that an order for security in the amount considered appropriate would stultify Staway's proceedings, and independently because the issues raised by Staway would be litigated regardless through the lenders' cross-claim and related guarantee and mortgage proceedings. The notice of motion was otherwise dealt with by separate costs orders reflecting the lenders' success on mediation costs and Staway's success on the security application.

Court Disposition

Application for further security for costs dismissed; discrete costs orders made.

Orders

  • ["Order the plaintiffs to pay the defendants' costs of prayer 1 of the defendants' notice of motion filed on 7 March 2017, such costs to be assessed on the indemnity basis." "Order the defendants to pay the first plaintiff's costs of prayers 2 and 3 of that notice of motion." 'Order that as between the first...