Linfox v Yates [2003] NSWSC 663

Linfox v Yates [2003] NSWSC 663

Even on the applicant's preferred approach to section 1335, the evidence did not establish that the respondent would be unable to pay a future costs order. Mr Wight's opinions were discounted because they were based on limited information and an inappropriate date for payment. The evidence of the bank officer did not support the suggestion that the bank would terminate facilities, and the evidence showed a likelihood that the proposed sales would proceed and provide ample funds well before any costs order could be enforced. The motion for security for costs was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
04 June 2003
Procedural Posture
Application for Security of Costs in Respect of the Continued Prosecution of the Cross Claim / Motion in the Equity Division Commercial List After the Plaintiff's Claim Against the Defendant Had Been Compromised, Leaving the Cross Claim for Determination
Outcome
Motion dismissed with costs.
Legal Topics
['security for Costs' 'costs' 'corporate Solvency' 'cross Claims']
['civil Procedure' 'corporations'] ['security for Costs' 'costs' 'corporate Solvency' 'cross Claims']

Case Brief

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Procedural Posture

Application for Security of Costs in Respect of the Continued Prosecution of the Cross Claim / Motion in the Equity Division Commercial List After the Plaintiff's Claim Against the Defendant Had Been Compromised, Leaving the Cross Claim for Determination

Legal Issues

  1. 1 ['Whether the respondent to the motion should provide security for costs under section 1335 of the Corporations Act in respect of the continued prosecution of the cross-claim.' 'Whether the financial position of Yates Limited and its subsidiaries made it likely that a costs order in favour of the applicant would not be satisfied.' 'Whether proposed sales of three businesses would provide funds sufficient to satisfy any future costs order.']

Ratio Decidendi

Even on the applicant's preferred approach to section 1335, the evidence did not establish that the respondent would be unable to pay a future costs order. Mr Wight's opinions were discounted because they were based on limited information and an inappropriate date for payment. The evidence of the bank officer did not support the suggestion that the bank would terminate facilities, and the evidence showed a likelihood that the proposed sales would proceed and provide ample funds well before any costs order could be enforced. The motion for security for costs was therefore dismissed with costs.

Court Disposition

Motion dismissed with costs.

Orders

  • ['The motion is dismissed with costs.']