Les & Zelda Investments Pty Ltd (ACN 148 907 573) as Trustee for Les & Zelda Family Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 741

Les & Zelda Investments Pty Ltd (ACN 148 907 573) as Trustee for Les & Zelda Family Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 741

Further security was warranted because Whitehaven's likely recoverable costs, assessed by reference to costs actually incurred and billed up to 31 March 2022, substantially exceeded the security already provided, and LZI had not shown prejudice from delay or any basis for refusing further security. In this complex proceeding it was appropriate to fix security by reference to past costs actually incurred, while applying a broad-brush reduction of $50,000 to account for the prior agreement and orders concerning earlier motions. The proper amount of additional security was therefore $850,000.

Jurisdiction
Australia
Judgment Date
08 June 2022
Procedural Posture
Security for Costs Application / Notice of Motion Filed on 17 November 2021 by the Defendant Seeking Further Security for Costs
Outcome
Motion substantially allowed; plaintiff ordered to provide further security for costs and to pay the defendant's costs of the motion.
Legal Topics
['security for Costs' 'further Security in Tranches' 'quantum and Form of Security' 'past Costs Actually Incurred' 'stay for Non Compliance With Security Order']
['civil Procedure' 'costs' 'corporations'] ['security for Costs' 'further Security in Tranches' 'quantum and Form of Security' 'past Costs Actually Incurred' 'stay for Non Compliance With Security Order']

Case Brief

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Procedural Posture

Security for Costs Application / Notice of Motion Filed on 17 November 2021 by the Defendant Seeking Further Security for Costs

Legal Issues

  1. 1 ["Whether the plaintiff should provide further security for the defendant's costs." 'Whether delay by the defendant in seeking further security should affect the application.' 'Whether further security based on past costs would involve double dipping because earlier security orders had been made.' 'What approach should be taken to fixing security for costs in this proceeding going forward.' 'What amount of further security should be ordered and whether any adjustment should be made for matters raised by the plaintiff.']

Ratio Decidendi

Further security was warranted because Whitehaven's likely recoverable costs, assessed by reference to costs actually incurred and billed up to 31 March 2022, substantially exceeded the security already provided, and LZI had not shown prejudice from delay or any basis for refusing further security. In this complex proceeding it was appropriate to fix security by reference to past costs actually incurred, while applying a broad-brush reduction of $50,000 to account for the prior agreement and orders concerning earlier motions. The proper amount of additional security was therefore $850,000.

Court Disposition

Motion substantially allowed; plaintiff ordered to provide further security for costs and to pay the defendant's costs of the motion.

Orders

  • ['Vacate orders (1) and (2) of the orders made by the Court on 19 November 2020.' "Order that the plaintiff provide, by way of bank guarantee or by payment into Court, further security for the defendant's costs in the amount of $850,000 in respect of costs billed to the defendant up to and including 31 March 2022."...