Blade Developments Pty Limited v Bishop [2017] NSWDC 463

Blade Developments Pty Limited v Bishop [2017] NSWDC 463

The Court was not persuaded that there was reason to believe Blade would be unable to meet an adverse costs order, particularly because its credit score was 703 and its current assets exceeded $700,000 while current liabilities were less than $400,000. Even if the threshold had been met, discretionary factors would have led the Court to refuse security: the cross-claim overlapped with the defence and would continue, a security order would stifle Blade's claim, the director was not practically hiding behind a worthless company, there was no evidence separating defence costs from cross-claim costs, and the proceedings appeared to have some merit.

Jurisdiction
Australia
Judgment Date
15 September 2017
Procedural Posture
Civil; Security for Costs Application / Defendant's Notice of Motion for Security for Costs
Outcome
Defendant's notice of motion for security for costs dismissed.
Legal Topics
['security for Costs' 'corporate Plaintiff' 'discretionary Factors' 'cross Claim Overlap' 'adverse Costs Order']
['civil Procedure' 'costs' 'building and Construction'] ['security for Costs' 'corporate Plaintiff' 'discretionary Factors' 'cross Claim Overlap' 'adverse Costs Order']

Case Brief

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Procedural Posture

Civil; Security for Costs Application / Defendant's Notice of Motion for Security for Costs

Legal Issues

  1. 1 ["Whether there was reason to believe that Blade Developments Pty Limited would be unable to pay the defendant's costs if ordered to do so." 'Whether discretionary matters under r 42.21(1A) of the Uniform Civil Procedure Rules 2005 would justify refusing security for costs even if the threshold were met.' "What costs order should be made on the security for costs application in light of the late provision of Blade's accounts."]

Ratio Decidendi

The Court was not persuaded that there was reason to believe Blade would be unable to meet an adverse costs order, particularly because its credit score was 703 and its current assets exceeded $700,000 while current liabilities were less than $400,000. Even if the threshold had been met, discretionary factors would have led the Court to refuse security: the cross-claim overlapped with the defence and would continue, a security order would stifle Blade's claim, the director was not practically hiding behind a worthless company, there was no evidence separating defence costs from cross-claim costs, and the proceedings appeared to have some merit.

Court Disposition

Defendant's notice of motion for security for costs dismissed.

Orders

  • ["Defendant's notice of motion for security for costs dismissed." "Costs of the application up to and including 13 July 2017 be costs of the proceedings, but costs thereafter, including the costs of the hearing, be plaintiff's costs of the proceedings."]