Barnden v Zulian; Barnden v Commissioner of Taxation [2018] NSWSC 1980

Barnden v Zulian; Barnden v Commissioner of Taxation [2018] NSWSC 1980

The November 2017 consent orders required $70,000 security and gave liberty to apply for additional security, but did not restrict any later application to quantum or create an issue estoppel on the Liquidator's liability to provide further security. The Liquidator's resistance to further security was not an abuse of process. Mr Zulian also failed to establish the threshold requirement under UCPR r 42.21(1)(e) because the evidence, including the Liquidator's professional indemnity insurance and absence of evidence about his or his firm's inability to pay, did not give reason to believe the Liquidator would be unable to meet an adverse costs order. The applications for further security...

Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Applications for Security for Costs in Related Corporations List Proceedings / Interlocutory Applications
Outcome
Applications for security for costs dismissed with costs.
Legal Topics
['security for Costs' 'liquidator as Plaintiff' 'issue Estoppel' 'abuse of Process' 'consent Orders' 'professional Indemnity Insurance' 'no Win, No Fee Litigation']
['practice and Procedure' 'corporations' 'estoppel'] ['security for Costs' 'liquidator as Plaintiff' 'issue Estoppel' 'abuse of Process' 'consent Orders' 'professional Indemnity Insurance' 'no Win, No Fee Litigation']

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Procedural Posture

Applications for Security for Costs in Related Corporations List Proceedings / Interlocutory Applications

Legal Issues

  1. 1 ["Whether the previous consent orders determined the Liquidator's liability to provide further security for costs." "Whether the previous consent orders gave rise to an issue estoppel or made the Liquidator's resistance to further security an abuse of process." "Whether there was reason to believe that the Liquidator would be unable to pay the defendants' costs if ordered to do so." 'Whether further security should be ordered and, if so, in what amount.']

Ratio Decidendi

The November 2017 consent orders required $70,000 security and gave liberty to apply for additional security, but did not restrict any later application to quantum or create an issue estoppel on the Liquidator's liability to provide further security. The Liquidator's resistance to further security was not an abuse of process. Mr Zulian also failed to establish the threshold requirement under UCPR r 42.21(1)(e) because the evidence, including the Liquidator's professional indemnity insurance and absence of evidence about his or his firm's inability to pay, did not give reason to believe the Liquidator would be unable to meet an adverse costs order. The applications for further security...

Court Disposition

Applications for security for costs dismissed with costs.

Orders

  • ["In matter number 2017/112239, order that the defendant's Interlocutory Process filed 10 August 2018 be dismissed." "In matter number 2017/112239, order that the defendant pay the plaintiffs' costs of that Interlocutory Process." "In matter number 2017/112250, order that the second defendant's Interlocutory Process...