Lima Orthopaedics Australia Pty Ltd v Proactive Ortho Pty Ltd [2021] NSWSC 1014

Lima Orthopaedics Australia Pty Ltd v Proactive Ortho Pty Ltd [2021] NSWSC 1014

Although Lima brought the application about nine months after the Cross-claim was filed, Proactive's Cross-Summons was not merely defensive because it advanced distinct claims for damages and unconscionable conduct. The undeveloped and general evidence about stultification and causation of impecuniosity did not justify refusing security. The delay justified limiting security to future costs, and applying a broad-brush assessment, security was fixed at $125,000.00.

Jurisdiction
Australia
Judgment Date
12 August 2021
Procedural Posture
Application for Security for Costs of a Cross Claim in the Equity Commercial List / Notice of Motion Filed by Plaintiff/cross Defendant for Security for Costs
Outcome
Order to be made for security for costs of the Cross-claim; security fixed at $125,000.00 for future costs, with the parties to confer on the orders necessary to give effect to the reasons.
Legal Topics
['security for Costs' 'cross Claim' 'defensive Cross Claim' 'delay' 'stultification' 'impecuniosity' 'agency Agreement']
['costs' 'civil Procedure' 'commercial Law'] ['security for Costs' 'cross Claim' 'defensive Cross Claim' 'delay' 'stultification' 'impecuniosity' 'agency Agreement']

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

Application for Security for Costs of a Cross Claim in the Equity Commercial List / Notice of Motion Filed by Plaintiff/cross Defendant for Security for Costs

Legal Issues

  1. 1 ["Whether the Court should exercise its discretion to order security for the costs of Proactive Ortho Pty Ltd's Cross-claim where it was common ground that Proactive would be unable to meet a costs order if unsuccessful." "Whether Proactive's Cross-Summons was in substance defensive so that security should not be ordered." "Whether Lima Orthopaedics Australia Pty Ltd's delay in bringing the application should cause security to be refused." "Whether security should be declined because it would stifle the proceedings or because Lima's conduct contributed to Proactive's impecuniosity." "What amount of security should be ordered for Lima's future costs."]

Ratio Decidendi

Although Lima brought the application about nine months after the Cross-claim was filed, Proactive's Cross-Summons was not merely defensive because it advanced distinct claims for damages and unconscionable conduct. The undeveloped and general evidence about stultification and causation of impecuniosity did not justify refusing security. The delay justified limiting security to future costs, and applying a broad-brush assessment, security was fixed at $125,000.00.

Court Disposition

Order to be made for security for costs of the Cross-claim; security fixed at $125,000.00 for future costs, with the parties to confer on the orders necessary to give effect to the reasons.

Orders

  • ["Proactive Ortho Pty Ltd is to provide security for Lima Orthopaedics Australia Pty Ltd's costs of the Cross-claim in the amount of $125,000.00." 'The parties should confer and agree on the orders necessary to give effect to the reasons.']