Vicland Live Animals -v- Wexco Airfreight [2001] NSWSC 282

Vicland Live Animals -v- Wexco Airfreight [2001] NSWSC 282

Security was ordered because the plaintiff accepted it could not pay the second defendant's costs if unsuccessful and failed to provide satisfactory evidence that the shareholder or others standing to benefit from the litigation lacked means, and also failed to prove that its impecuniosity resulted from the second defendant's breaches. However, because the second defendant delayed in bringing the renewed application until the proceedings were fixed for hearing and substantially prepared, security was limited to discounted future costs fixed at $40,000.

Jurisdiction
Australia
Judgment Date
17 May 2001
Procedural Posture
Application for Security for Costs / Notice of Motion by the Second Defendant Filed 26 April 2001; Proceedings Fixed for Hearing on 15 October 2001
Outcome
Application granted in part; plaintiff ordered to provide security for the second defendant's costs in the sum of $40,000.
Legal Topics
['security for Costs' 'corporate Plaintiff Impecuniosity' 'delay in Bringing Application' 'future Costs' 'stay of Proceedings']
['civil Procedure' 'costs' 'commercial Litigation'] ['security for Costs' 'corporate Plaintiff Impecuniosity' 'delay in Bringing Application' 'future Costs' 'stay of Proceedings']

Case Brief

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Procedural Posture

Application for Security for Costs / Notice of Motion by the Second Defendant Filed 26 April 2001; Proceedings Fixed for Hearing on 15 October 2001

Legal Issues

  1. 1 ["Whether the plaintiff should provide security for the second defendant's costs." "Whether the plaintiff's impecuniosity was caused by the second defendant's conduct." 'Whether persons standing behind the plaintiff and benefiting from the litigation had capacity to provide security.' 'Whether delay in bringing the application justified refusal of security or limiting security to future costs.']

Ratio Decidendi

Security was ordered because the plaintiff accepted it could not pay the second defendant's costs if unsuccessful and failed to provide satisfactory evidence that the shareholder or others standing to benefit from the litigation lacked means, and also failed to prove that its impecuniosity resulted from the second defendant's breaches. However, because the second defendant delayed in bringing the renewed application until the proceedings were fixed for hearing and substantially prepared, security was limited to discounted future costs fixed at $40,000.

Court Disposition

Application granted in part; plaintiff ordered to provide security for the second defendant's costs in the sum of $40,000.

Orders

  • ["The plaintiff is to provide security for the second defendant's costs of the proceedings in the sum of $40,000." 'Security is to be provided in the form of a bank guarantee or payment into Court or such other form as approved by the Court by 4pm 20 September 2001.' 'Failing provision of security, the proceedings...