Di Francesco v Pioneer Energy Pty Limited (No 2) [2014] NSWSC 1923

Di Francesco v Pioneer Energy Pty Limited (No 2) [2014] NSWSC 1923

The application failed because the Pioneer defendants did not establish reason to believe that either Blue Oil or Blue Diamond would be unable to pay an adverse costs order. Blue Oil had assets of nearly $13 million once the Pure Energy debt was subordinated to any costs order, and Blue Diamond had nearly $5 million in readily available cash or cash equivalents once Mr Seth undertook not to call on his director's loan. In any event, security would have been refused on discretionary grounds because of delay, overlap with the earlier security application, and Mr Seth's acknowledgement that he would be liable for any costs order against the corporate plaintiffs.

Jurisdiction
Australia
Judgment Date
12 August 2014
Procedural Posture
Application for Security for Costs in Corporations Proceedings / Interlocutory Application
Outcome
Application for security for costs dismissed with costs.
Legal Topics
['security for Costs' 'corporate Impecuniosity' 'discretionary Refusal of Security' 'subordination of Related Party Debt' 'costs']
['civil Procedure' 'corporations Law'] ['security for Costs' 'corporate Impecuniosity' 'discretionary Refusal of Security' 'subordination of Related Party Debt' 'costs']

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Procedural Posture

Application for Security for Costs in Corporations Proceedings / Interlocutory Application

Legal Issues

  1. 1 ["Whether there was reason to believe that Blue Oil Energy Pty Limited would be unable to pay the Pioneer defendants' costs if ordered to do so." "Whether there was reason to believe that Blue Diamond Australia Pty Limited would be unable to pay the Pioneer defendants' costs if ordered to do so." 'Whether discretionary considerations, including delay, overlap with an earlier security application, and the presence and acknowledgement of liability by a natural plaintiff within the jurisdiction, warranted refusal of security.' 'What orders should be made as to the application and costs.']

Ratio Decidendi

The application failed because the Pioneer defendants did not establish reason to believe that either Blue Oil or Blue Diamond would be unable to pay an adverse costs order. Blue Oil had assets of nearly $13 million once the Pure Energy debt was subordinated to any costs order, and Blue Diamond had nearly $5 million in readily available cash or cash equivalents once Mr Seth undertook not to call on his director's loan. In any event, security would have been refused on discretionary grounds because of delay, overlap with the earlier security application, and Mr Seth's acknowledgement that he would be liable for any costs order against the corporate plaintiffs.

Court Disposition

Application for security for costs dismissed with costs.

Orders

  • ['The interlocutory process filed on 30 May 2014 be dismissed with costs, fixed in the sum of $22,500, and payable forthwith.']