BILLIVA PTY LTD v EASTBROOK ESTATE PTY LTD, EASTBROOK PASTORAL PTY LTD and MONEZT DEVELOPMENTS PTY LTD [2009] NSWSC 209

BILLIVA PTY LTD v EASTBROOK ESTATE PTY LTD, EASTBROOK PASTORAL PTY LTD and MONEZT DEVELOPMENTS PTY LTD [2009] NSWSC 209

Because the plaintiff had only nominal paid up capital, produced no financial accounts or evidence of assets, and there was reason to believe it would not be able to meet the defendants' costs if the defendants succeeded, an order for security for costs was warranted. Mr Williams' offered undertakings were relevant but, in the absence of evidence of his financial position, were not a sufficient substitute for security; accordingly security was ordered in a reduced amount if the undertakings were given, and in a higher amount if they were not.

Jurisdiction
Australia
Judgment Date
27 March 2009
Procedural Posture
Security for Costs Application in Supreme Court of NSW Equity Division Proceedings / Defendants' Notice of Motion Dated 16 December 2008, Heard Before Trial
Outcome
Security for costs ordered conditionally, with a stay of the further hearing if security is not given as ordered.
Legal Topics
['security for Costs' 'corporate Plaintiff With Minimal Paid Up Capital' 'personal Undertaking or Guarantee for Costs' 'assessment of Amount of Security' 'stay Pending Provision of Security']
['civil Procedure' 'costs' 'equity' 'contract'] ['security for Costs' 'corporate Plaintiff With Minimal Paid Up Capital' 'personal Undertaking or Guarantee for Costs' 'assessment of Amount of Security' 'stay Pending Provision of Security']

Case Brief

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Procedural Posture

Security for Costs Application in Supreme Court of NSW Equity Division Proceedings / Defendants' Notice of Motion Dated 16 December 2008, Heard Before Trial

Legal Issues

  1. 1 ["Whether there was reason to believe the plaintiff would be unable to meet the defendants' costs if the defendants were successful." "Whether undertakings offered by Mr G Williams to assume liability for the defendants' costs were a sufficient substitute for security for costs." 'What amount and form of security for costs should be ordered.' "Whether the parties' arguable positions on the underlying contractual dispute affected the exercise of the discretion."]

Ratio Decidendi

Because the plaintiff had only nominal paid up capital, produced no financial accounts or evidence of assets, and there was reason to believe it would not be able to meet the defendants' costs if the defendants succeeded, an order for security for costs was warranted. Mr Williams' offered undertakings were relevant but, in the absence of evidence of his financial position, were not a sufficient substitute for security; accordingly security was ordered in a reduced amount if the undertakings were given, and in a higher amount if they were not.

Court Disposition

Security for costs ordered conditionally, with a stay of the further hearing if security is not given as ordered.

Orders

  • ['Upon Mr G Williams undertaking to the Court and giving an enforceable undertaking to the defendants that he will assume liability for the costs of the defendants for which the plaintiff is liable in respect of these proceedings on a party and party basis, the plaintiff provide security for the costs of the...