I and J Formwork Pty Ltd v Donya Constructions Pty Ltd [2021] NSWSC 940

I and J Formwork Pty Ltd v Donya Constructions Pty Ltd [2021] NSWSC 940

Security for costs was ordered because, although the plaintiff offered its sole director and shareholder's personal undertaking, his liabilities exceeded his assets, his only liquid asset was $6,200 in savings, many assets were unlikely to be readily available or realisable for significant value, there was no evidence of his income or personal expenses, and it was not suggested that providing security would stultify the proceedings. The amount sought was broadly reasonable, and security of $100,000.00 was appropriate.

Jurisdiction
Australia
Judgment Date
30 July 2021
Procedural Posture
Security for Costs Application in Technology and Construction List Proceedings Arising From a Construction Contract / On the Papers; Consequential Orders
Outcome
Security for costs ordered; proceedings stayed until security is provided.
Legal Topics
['security for Costs' 'corporate Plaintiff' "director's Personal Undertaking" 'technology and Construction List']
['civil Procedure' 'costs' 'building and Construction'] ['security for Costs' 'corporate Plaintiff' "director's Personal Undertaking" 'technology and Construction List']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Security for Costs Application in Technology and Construction List Proceedings Arising From a Construction Contract / On the Papers; Consequential Orders

Legal Issues

  1. 1 ["Whether the plaintiff should be ordered to provide security for the defendants' costs." "Whether a personal undertaking by the plaintiff's sole director and shareholder was a sufficient reason to decline to order security." 'What amount of security for costs was reasonable.']

Ratio Decidendi

Security for costs was ordered because, although the plaintiff offered its sole director and shareholder's personal undertaking, his liabilities exceeded his assets, his only liquid asset was $6,200 in savings, many assets were unlikely to be readily available or realisable for significant value, there was no evidence of his income or personal expenses, and it was not suggested that providing security would stultify the proceedings. The amount sought was broadly reasonable, and security of $100,000.00 was appropriate.

Court Disposition

Security for costs ordered; proceedings stayed until security is provided.

Orders

  • ['The plaintiff is to provide security for the costs of the defendants in the sum of $100,000.00 by payment into Court within 28 days of the date of these orders.' 'The proceedings be stayed until such security is provided.' "The plaintiff is to pay the defendants' costs of this application." 'I stand the matter...