In the matter of Bailey Roberts Group Pty Ltd (No 2) [2023] NSWSC 1364

In the matter of Bailey Roberts Group Pty Ltd (No 2) [2023] NSWSC 1364

The appropriate costs orders depended on the degree of success on each security application and whether Strategy acted unreasonably in rejecting offers of security. The second and third defendants had no success, while the fourth to sixth defendants had only limited success, justifying an order that Strategy pay three-fifths of the second to sixth defendants' costs on the ordinary basis. Strategy's rejection of Mr Thomas' offer was not unreasonable because his application and evidence had not yet been filed and duplication in his costs estimate was only later clarified, so only ordinary costs were ordered. Strategy acted unreasonably in not accepting Mr Bailey's genuine compromise offer...

Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Costs of Security for Costs Applications / On the Papers After Determination of Security for Costs Applications
Outcome
Costs orders made for the security for costs applications.
Legal Topics
['security for Costs' 'costs Discretion' 'ordinary Costs' 'indemnity Costs' 'offers of Compromise']
['civil Procedure' 'costs' 'corporations'] ['security for Costs' 'costs Discretion' 'ordinary Costs' 'indemnity Costs' 'offers of Compromise']

Case Brief

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Procedural Posture

Costs of Security for Costs Applications / On the Papers After Determination of Security for Costs Applications

Legal Issues

  1. 1 ["What costs orders should be made following determination of the defendants' applications for security for costs." "Whether Strategy should pay the second to sixth defendants' costs of the 2021 security for costs application on the ordinary basis, or whether those costs should be costs in the cause." "Whether Strategy's rejection of Mr Thomas' offer to accept security justified indemnity costs." "Whether Strategy's failure to accept Mr Bailey's offer to accept security justified indemnity costs."]

Ratio Decidendi

The appropriate costs orders depended on the degree of success on each security application and whether Strategy acted unreasonably in rejecting offers of security. The second and third defendants had no success, while the fourth to sixth defendants had only limited success, justifying an order that Strategy pay three-fifths of the second to sixth defendants' costs on the ordinary basis. Strategy's rejection of Mr Thomas' offer was not unreasonable because his application and evidence had not yet been filed and duplication in his costs estimate was only later clarified, so only ordinary costs were ordered. Strategy acted unreasonably in not accepting Mr Bailey's genuine compromise offer...

Court Disposition

Costs orders made for the security for costs applications.

Orders

  • ["Proceeding 238607 of 2021: Order the plaintiff to pay three-fifths of the second to sixth defendants' costs of their application for security for costs filed on 31 July 2023 on the ordinary basis in such amount as may be agreed or assessed." "Proceeding 163417 of 2023: Order the plaintiff to pay the first...