Kupang Resources Ltd (subject to Deed Of Company Arrangement) v Elias [2018] NSWSC 1553

Kupang Resources Ltd (subject to Deed Of Company Arrangement) v Elias [2018] NSWSC 1553

Because it was common ground that the plaintiff, being subject to a deed of company arrangement, should provide security, the Court fixed security by estimating the second defendant's likely recoverable costs, discounting for assessment, and addressing uncertainty by ordering two tranches with liberty to apply. The Court refused to reduce the security by reference to the Federal Court costs order because that order was joint and several against Mr Sage and Cape Lambert, Cape Lambert was not a party to these proceedings, and assessing the recoverable amount of that separate costs order would inappropriately complicate the present application.

Jurisdiction
Australia
Judgment Date
12 October 2018
Procedural Posture
Application for Security for Costs / Interlocutory Application
Outcome
The plaintiff was ordered to provide $300,000 security for the second defendant's costs in two tranches; no allowance was made for the asserted set-off; costs of the application were costs in the cause.
Legal Topics
['security for Costs' 'quantum of Security' 'recoverable Costs' 'security in Tranches' 'set Off of Costs Orders' 'corporations Act 2001 (cth), S 1335(1)']
['practice and Procedure' 'corporations'] ['security for Costs' 'quantum of Security' 'recoverable Costs' 'security in Tranches' 'set Off of Costs Orders' 'corporations Act 2001 (cth), S 1335(1)']

Case Brief

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Procedural Posture

Application for Security for Costs / Interlocutory Application

Legal Issues

  1. 1 ["What amount of security for costs should the plaintiff provide for the second defendant's costs." "Whether the second defendant's estimate of costs involved unnecessary expense in the preparation and hearing of the matter." 'Whether uncertainty about future conduct of the proceedings should be addressed by discounting the security amount or by ordering security in tranches with liberty to apply.' 'Whether the security amount should be reduced by reference to a costs order made in previous Federal Court examination proceedings.']

Ratio Decidendi

Because it was common ground that the plaintiff, being subject to a deed of company arrangement, should provide security, the Court fixed security by estimating the second defendant's likely recoverable costs, discounting for assessment, and addressing uncertainty by ordering two tranches with liberty to apply. The Court refused to reduce the security by reference to the Federal Court costs order because that order was joint and several against Mr Sage and Cape Lambert, Cape Lambert was not a party to these proceedings, and assessing the recoverable amount of that separate costs order would inappropriately complicate the present application.

Court Disposition

The plaintiff was ordered to provide $300,000 security for the second defendant's costs in two tranches; no allowance was made for the asserted set-off; costs of the application were costs in the cause.

Orders

  • ["The plaintiff provide security for the second defendant's costs in the following tranches: $150,000 to be paid within 28 days; a further $150,000 to be paid within 42 days of the court setting the matter down for trial." 'Order that security be paid by payment into Court or such other form as may be agreed with...