T & H Pty Limited v 304 Chapel Rd Pty Ltd; T & H Pty Limited v Trinh [2018] NSWDC 215

T & H Pty Limited v 304 Chapel Rd Pty Ltd; T & H Pty Limited v Trinh [2018] NSWDC 215

The threshold for security for costs under r 42.21 was satisfied because the plaintiff was not resident in Australia, had very limited assets, and was unlikely to be able to pay the defendants' costs if ordered to do so. The plaintiff did not discharge the shifted onus of showing that security should not be ordered: there was no sufficient evidence of the company's financial circumstances or the second shareholder's position, Mr Nguyen's financial difficulty was not caused by the defendants, there was significant unexplained delay, the plaintiff had commenced four proceedings against the defendants, and the proposed defences were not cross-claims. Having regard to the relevant...

Jurisdiction
Australia
Judgment Date
09 August 2018
Procedural Posture
Civil Proceedings; Motions for Security for Costs / Notice of Motion Filed 9 May 2018 by Defendants Seeking Security for Costs and Stay of Proceedings
Outcome
Defendants' motions for security for costs granted in part; proceedings stayed pending provision of security.
Legal Topics
['security for Costs' 'stay of Proceedings Pending Security' 'corporate Plaintiff Impecuniosity' 'discretion to Order Security' 'quantum of Security for Costs']
['civil Procedure' 'costs'] ['security for Costs' 'stay of Proceedings Pending Security' 'corporate Plaintiff Impecuniosity' 'discretion to Order Security' 'quantum of Security for Costs']

Case Brief

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Procedural Posture

Civil Proceedings; Motions for Security for Costs / Notice of Motion Filed 9 May 2018 by Defendants Seeking Security for Costs and Stay of Proceedings

Legal Issues

  1. 1 ['Whether the threshold for ordering security for costs under r 42.21 of the Uniform Civil Procedure Rules 2005 was satisfied.' 'Whether the plaintiff established that security for costs ought not be ordered despite satisfaction of the threshold.' 'Whether the foreshadowed defences were principally in the nature of cross-claims.' 'What amount of security for costs was appropriate.']

Ratio Decidendi

The threshold for security for costs under r 42.21 was satisfied because the plaintiff was not resident in Australia, had very limited assets, and was unlikely to be able to pay the defendants' costs if ordered to do so. The plaintiff did not discharge the shifted onus of showing that security should not be ordered: there was no sufficient evidence of the company's financial circumstances or the second shareholder's position, Mr Nguyen's financial difficulty was not caused by the defendants, there was significant unexplained delay, the plaintiff had commenced four proceedings against the defendants, and the proposed defences were not cross-claims. Having regard to the relevant...

Court Disposition

Defendants' motions for security for costs granted in part; proceedings stayed pending provision of security.

Orders

  • ["In the proceedings 00093528/2018, the plaintiff is to provide security for the defendants' costs by paying into court the sum of $25,000.00 or by otherwise providing security for that amount in a manner satisfactory to the defendant. The security is to be provided by 10 September 2018, on which date the matter is...