Cosmetic Laser Clinic Pty Ltd v Pirintji [2015] NSWSC 1353

Cosmetic Laser Clinic Pty Ltd v Pirintji [2015] NSWSC 1353

Although the plaintiffs did not contest limited means and the defendant had shown reason to believe they may be unable to pay an adverse costs order, discretion should not be exercised to order security because the application was made at an advanced stage without proper explanation after the plaintiffs had substantially prepared the case and incurred over $300,000 in costs; an order for $150,000 would likely prejudice the plaintiffs and may stifle an arguable, bona fide claim.

Jurisdiction
Australia
Judgment Date
15 September 2015
Procedural Posture
Notice of Motion Seeking Security for Costs in Professional Negligence Proceedings / Duty Judge Determination of Defendant's Further Amended Notice of Motion Filed 21 August 2015
Outcome
Defendant's application for security for costs dismissed.
Legal Topics
['security for Costs' 'r 42.21(1)(d) Ucpr' 's 1335 Corporations Act 2001 (cth)' 'corporate Plaintiff Impecuniosity' 'delay' 'stifling Litigation']
['civil Procedure' 'corporations' 'professional Negligence'] ['security for Costs' 'r 42.21(1)(d) Ucpr' 's 1335 Corporations Act 2001 (cth)' 'corporate Plaintiff Impecuniosity' 'delay' 'stifling Litigation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion Seeking Security for Costs in Professional Negligence Proceedings / Duty Judge Determination of Defendant's Further Amended Notice of Motion Filed 21 August 2015

Legal Issues

  1. 1 ["Whether there was reason to believe the corporate plaintiffs would be unable to pay the defendant's costs if ordered to do so." 'Whether the Court should exercise its discretion to order security for costs under r 42.21(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW) and s 1335 of the Corporations Act 2001 (Cth).' "Whether delay in bringing the security for costs application and the risk of stifling the plaintiffs' claim justified refusing security."]

Ratio Decidendi

Although the plaintiffs did not contest limited means and the defendant had shown reason to believe they may be unable to pay an adverse costs order, discretion should not be exercised to order security because the application was made at an advanced stage without proper explanation after the plaintiffs had substantially prepared the case and incurred over $300,000 in costs; an order for $150,000 would likely prejudice the plaintiffs and may stifle an arguable, bona fide claim.

Court Disposition

Defendant's application for security for costs dismissed.

Orders

  • ["The defendant's Notice of Motion of 21 August 2015 seeking an order for security for costs is dismissed." 'Costs of the motion to be costs in the cause.' "The matter is to be placed in the Registrar's list at 9am on 16 September 2015 for a hearing date to be fixed."]