Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd [2022] NSWSC 42

Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd [2022] NSWSC 42

Further security was justified because, since the earlier order on 14 September 2021, significant developments had materially increased the likely costs of defending the cross-claim, including amended misleading or deceptive conduct allegations, late evidence filed in December 2021 and further amendments adding statutory unconscionability allegations. NSW Historic Sites did not establish that Misthold caused its impecuniosity, that financial support was unavailable, or that further security would stultify the proceedings. However, the further security sought was excessive given the hearing length, overlap between issues and the principle that security is not a complete indemnity, so...

Jurisdiction
Australia
Judgment Date
01 February 2022
Procedural Posture
Application for Further Security for Costs / Procedural Ruling Before Trial
Outcome
Application for further security for costs granted in part.
Legal Topics
['security for Costs' 'further Security for Costs' 'cross Claim' 'uniform Civil Procedure Rules 2005 (nsw), R 42.21']
['civil Procedure' 'costs'] ['security for Costs' 'further Security for Costs' 'cross Claim' 'uniform Civil Procedure Rules 2005 (nsw), R 42.21']

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

Application for Further Security for Costs / Procedural Ruling Before Trial

Legal Issues

  1. 1 ['Whether Misthold demonstrated a material change in circumstances since the earlier security for costs order justifying further security for costs.' 'Whether, in the exercise of discretion, further security should be ordered and in what amount.' "Whether NSW Historic Sites had shown that further security would stultify the cross-claim or that its impecuniosity was caused by Misthold's conduct."]

Ratio Decidendi

Further security was justified because, since the earlier order on 14 September 2021, significant developments had materially increased the likely costs of defending the cross-claim, including amended misleading or deceptive conduct allegations, late evidence filed in December 2021 and further amendments adding statutory unconscionability allegations. NSW Historic Sites did not establish that Misthold caused its impecuniosity, that financial support was unavailable, or that further security would stultify the proceedings. However, the further security sought was excessive given the hearing length, overlap between issues and the principle that security is not a complete indemnity, so...

Court Disposition

Application for further security for costs granted in part.

Orders

  • ["Pursuant to rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), the defendant/cross-claimant provide further security for the plaintiff's/cross-defendant's costs of defending the cross-claim in the sum of $50,000 by 4pm on 9 February 2022, such security to be provided by way of payment into Court or...