Dunnet Properties Pty Limited v Cussen [2009] NSWSC 961

Dunnet Properties Pty Limited v Cussen [2009] NSWSC 961

Although the relatively undemanding statutory threshold for security for costs was met against each relevant respondent, the Court declined to order security because the claim and cross-claim were substantially reflexive and involved the same issues and costs. Ordering security would effectively require each side to provide security for the costs of prosecuting its own claim, and the interests of justice did not require that result.

Jurisdiction
Australia
Judgment Date
03 September 2009
Procedural Posture
Applications for Security for Costs of Claim and Cross Claim / Ex Tempore Ruling on Notices of Motion
Outcome
Each notice of motion dismissed with costs; costs set off.
Legal Topics
['security for Costs' 'cross Claims' 'discretion to Order Security' 'inability to Pay Costs' 'misleading or Deceptive Conduct' 'repudiation of Contract']
['costs' 'civil Procedure' 'corporations' 'contract' 'trade Practices'] ['security for Costs' 'cross Claims' 'discretion to Order Security' 'inability to Pay Costs' 'misleading or Deceptive Conduct' 'repudiation of Contract']

Case Brief

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Procedural Posture

Applications for Security for Costs of Claim and Cross Claim / Ex Tempore Ruling on Notices of Motion

Legal Issues

  1. 1 ['Whether there was reason to believe the respondents to each security for costs application would be unable to pay costs if ordered to do so.' 'Whether the Court should exercise its discretion to order security for costs where the claim and cross-claim involved substantially common issues.' 'Whether any separate issues in the cross-claim, including the assurance fund damages claim, justified security for costs.']

Ratio Decidendi

Although the relatively undemanding statutory threshold for security for costs was met against each relevant respondent, the Court declined to order security because the claim and cross-claim were substantially reflexive and involved the same issues and costs. Ordering security would effectively require each side to provide security for the costs of prosecuting its own claim, and the interests of justice did not require that result.

Court Disposition

Each notice of motion dismissed with costs; costs set off.

Orders

  • ['Each notice of motion be dismissed with costs and the costs be set off.' 'The proceedings were stood over for directions on Friday, 18 September 2009.' 'The exhibits on the applications were ordered to be handed out and the authorities provided to the Court returned.']