Skyworks NSW Pty Ltd (in liq) v 32 Drummoyne Pty Ltd (formerly Q.Y & Lynn Pty Ltd) [2018] NSWSC 1521

Skyworks NSW Pty Ltd (in liq) v 32 Drummoyne Pty Ltd (formerly Q.Y & Lynn Pty Ltd) [2018] NSWSC 1521

The application was dismissed because Decode Sydney Pty Ltd had given an undertaking in the same terms as Decode Group Pty Ltd's undertaking, confidential financial evidence showed Decode Sydney Pty Ltd was plainly good for that undertaking, the application was made very late shortly before the hearing, and the asserted inadequacy of the earlier undertaking and sparse explanation for the oversight did not justify replacing the undertaking-based regime with payment of $300,000 into Court.

Jurisdiction
Australia
Judgment Date
05 October 2018
Procedural Posture
Costs Security for Costs / Defendants' Notice of Motion Seeking to Replace Existing Undertakings for Security for Costs With Payment of $300,000 Into Court Shortly Before the Listed Hearing
Outcome
Application to vary arrangements for security of the first defendant's costs dismissed.
Legal Topics
['security for Costs' 'undertakings to the Court' 'variation of Security Arrangements' 'payment Into Court']
['civil Procedure' 'costs'] ['security for Costs' 'undertakings to the Court' 'variation of Security Arrangements' 'payment Into Court']

Case Brief

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Procedural Posture

Costs Security for Costs / Defendants' Notice of Motion Seeking to Replace Existing Undertakings for Security for Costs With Payment of $300,000 Into Court Shortly Before the Listed Hearing

Legal Issues

  1. 1 ["Whether the existing security regime represented by undertakings should be replaced by an order requiring the plaintiff, Roc Build Pty Ltd and Decode Sydney Pty Ltd to pay $300,000 into Court as security for the defendants' costs." "Whether the asserted inadequacy of Decode Group Pty Ltd's undertaking and the explanation for naming that company justified changing the security regime at a late stage."]

Ratio Decidendi

The application was dismissed because Decode Sydney Pty Ltd had given an undertaking in the same terms as Decode Group Pty Ltd's undertaking, confidential financial evidence showed Decode Sydney Pty Ltd was plainly good for that undertaking, the application was made very late shortly before the hearing, and the asserted inadequacy of the earlier undertaking and sparse explanation for the oversight did not justify replacing the undertaking-based regime with payment of $300,000 into Court.

Court Disposition

Application to vary arrangements for security of the first defendant's costs dismissed.

Orders

  • ['The notice of motion is dismissed.' 'The costs of the motion be costs in the cause.' 'The confidential affidavit of Mr Coleman be returned to the solicitors for the plaintiff.']