Cody v Live Board Holdings Pty Ltd (No 2) [2017] NSWSC 308

Cody v Live Board Holdings Pty Ltd (No 2) [2017] NSWSC 308

Leave to file further evidence was refused as the evidence would not change outcome and concerned deficiencies previously identified; security for costs was ordered against LBH in the sum of $250,000 based on the complexity and seriousness of the cross claim, with consideration for potential stultification, but reduction applied due to some prospects on a narrow issue; application to vary the prior costs order was refused as there was no material change of circumstances or new material; application for interlocutory injunction was refused for lack of serious issue to be tried and insufficient balance of convenience.

Parties
Cross Claimant: Live Board Holdings Ltd; First Cross Defendant: Cody Live Pty Ltd ACN 168 364 403; Second Cross Defendant: Cody Investments Pty Ltd ACN 100 588 903; Third Cross Defendant: Brain Beyond Pty Ltd ACN 128 068 082; Fourth Cross Defendant: Pierce Patrick Cody; Fifth Cross Defendant: Finola Anne Burke
Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Equity Proceeding With Cross Claims and Interlocutory Motions / Ruling on Interlocutory Applications: Security for Costs, Further Evidence, Costs Variation, and Dismissal of Interlocutory Injunction Application
Outcome
Applications mostly refused. Security for costs ordered. Proceedings stayed pending provision of security. Costs against cross claimant.
Legal Topics
Security for Costs, Interlocutory Injunction, Directors' Duties, Corporate Insolvency, Costs Applications
Practice and Procedure Equity Corporations Law Security for Costs Interlocutory Injunction Directors' Duties Corporate Insolvency Costs Applications

Case Brief

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Parties

Live Board Holdings Ltd

Cross Claimant

Cody Live Pty Ltd ACN 168 364 403

First Cross Defendant

Cody Investments Pty Ltd ACN 100 588 903

Second Cross Defendant

Brain Beyond Pty Ltd ACN 128 068 082

Third Cross Defendant

Pierce Patrick Cody

Fourth Cross Defendant

Finola Anne Burke

Fifth Cross Defendant

Procedural Posture

Equity Proceeding With Cross Claims and Interlocutory Motions / Ruling on Interlocutory Applications: Security for Costs, Further Evidence, Costs Variation, and Dismissal of Interlocutory Injunction Application

Legal Issues

  1. 1 Should leave be granted to adduce further evidence in relation to security for costs?
  2. 2 Should security for costs be ordered against the cross claimant (LBH), and in what quantum?
  3. 3 Should the prior interlocutory costs order be varied?

Ratio Decidendi

Leave to file further evidence was refused as the evidence would not change outcome and concerned deficiencies previously identified; security for costs was ordered against LBH in the sum of $250,000 based on the complexity and seriousness of the cross claim, with consideration for potential stultification, but reduction applied due to some prospects on a narrow issue; application to vary the prior costs order was refused as there was no material change of circumstances or new material; application for interlocutory injunction was refused for lack of serious issue to be tried and insufficient balance of convenience.

Court Disposition

Applications mostly refused. Security for costs ordered. Proceedings stayed pending provision of security. Costs against cross claimant.

Orders

  • Order cross claimant to pay costs of cross defendants thrown away by filing third amended cross claim.
  • Dismiss claim for interlocutory relief in par 1 of cross claimant's notice of motion filed 19 July 2016.