Calm One Pty Limited v Agripower Australia Limited [2016] NSWDC 136

Calm One Pty Limited v Agripower Australia Limited [2016] NSWDC 136

Security for costs was warranted because the plaintiff company had very limited and uncertain assets, no real property, unsatisfactory accounts, and there was reason to believe it would be unable to pay a costs order if the defendant succeeded. The defendant had not delayed in bringing the motion, there was no evidence that the defendant caused the plaintiff's impecuniosity, there was no evidence that security would be oppressive, and Mr Rohner's proposed undertaking was unsupported by evidence of his assets or net worth. Because the plaintiff's own summary judgment motion was listed shortly, an initial security amount of $20,000 was ordered, with a further $80,000 if that motion was...

Jurisdiction
Australia
Judgment Date
20 May 2016
Procedural Posture
Civil Proceedings / Defendant's Notice of Motion Filed 1 April 2016 Seeking Security for Costs
Outcome
Proceedings stayed until the plaintiff provides security for costs in the sum of $20,000 by 4pm on Monday 30 May 2016, with further security of $80,000 required if the plaintiff's notice of motion filed 13 May 2016 is dismissed or withdrawn.
Legal Topics
['security for Costs' 'corporate Plaintiff' 'stay of Proceedings' 'costs in the Cause']
['civil Procedure' 'corporations'] ['security for Costs' 'corporate Plaintiff' 'stay of Proceedings' 'costs in the Cause']

Case Brief

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Procedural Posture

Civil Proceedings / Defendant's Notice of Motion Filed 1 April 2016 Seeking Security for Costs

Legal Issues

  1. 1 ['Whether the plaintiff company should be ordered to provide security for costs.' 'Whether there was reason to believe the plaintiff would be unable to pay a costs order if the defendant succeeded.' "Whether factors including delay, merits, alleged impecuniosity caused by the defendant, oppression, and the director's proposed undertaking justified refusing or limiting security."]

Ratio Decidendi

Security for costs was warranted because the plaintiff company had very limited and uncertain assets, no real property, unsatisfactory accounts, and there was reason to believe it would be unable to pay a costs order if the defendant succeeded. The defendant had not delayed in bringing the motion, there was no evidence that the defendant caused the plaintiff's impecuniosity, there was no evidence that security would be oppressive, and Mr Rohner's proposed undertaking was unsupported by evidence of his assets or net worth. Because the plaintiff's own summary judgment motion was listed shortly, an initial security amount of $20,000 was ordered, with a further $80,000 if that motion was...

Court Disposition

Proceedings stayed until the plaintiff provides security for costs in the sum of $20,000 by 4pm on Monday 30 May 2016, with further security of $80,000 required if the plaintiff's notice of motion filed 13 May 2016 is dismissed or withdrawn.

Orders

  • ['Proceedings stayed until the plaintiff provides security for costs in the sum of $20,000 by 4pm on Monday 30 May 2016, the form of the security to be to the satisfaction of the Registrar.' "If such security be paid, but the plaintiff's notice of motion filed on 13 May 2016 be dismissed or withdrawn, the plaintiff...