Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139

Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139

Although the Court's jurisdiction to order security for costs was enlivened because Mr Luo ordinarily resided outside Australia and AusChina appeared unable to meet a costs order, security was refused. The plaintiffs had a prima facie very strong case, including evidence supporting non-delivery, misleading or deceptive representations, and trust claims; Mr Coulter's current assertion that the omasum was delivered was inconsistent with his earlier communications alleging fraud and salt shipments; the defendants had failed to comply adequately with their undertaking to explain what happened to Mr Luo's funds; and, in all probability, an order for security would bring apparently meritorious...

Jurisdiction
Australia
Judgment Date
24 July 2018
Procedural Posture
Application for Security for Costs / Interlocutory Application in the Equity Commercial List
Outcome
Application for security for costs dismissed with costs
Legal Topics
['security for Costs' 'plaintiff Ordinarily Resident Outside Australia' 'corporate Plaintiff Unable to Meet Costs Order' 'prospects of Success' 'undertaking to the Court' 'stultification of Proceedings' 'quistclose Trust' 'misleading or Deceptive Conduct']
['practice and Procedure' 'costs' 'equity' 'contract' 'commercial Law'] ['security for Costs' 'plaintiff Ordinarily Resident Outside Australia' 'corporate Plaintiff Unable to Meet Costs Order' 'prospects of Success' 'undertaking to the Court' 'stultification of Proceedings' 'quistclose Trust' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Application for Security for Costs / Interlocutory Application in the Equity Commercial List

Legal Issues

  1. 1 ['Whether security for costs should be ordered where Mr Luo ordinarily resides outside Australia and there is reason to believe AusChina will be unable to pay costs if ordered to do so.' "Whether the apparent merits of the plaintiffs' claims justified refusing security for costs." "Whether the defendants' failure to comply adequately with an undertaking to the Court weighed against ordering security." 'Whether an order for security would stultify the proceedings.' "Whether the plaintiffs' inability to provide security was caused by the conduct complained of, whether the proceedings were defensive, and whether the defendants' knowledge of Mr Luo's residence outside Australia or public interest considerations were relevant."]

Ratio Decidendi

Although the Court's jurisdiction to order security for costs was enlivened because Mr Luo ordinarily resided outside Australia and AusChina appeared unable to meet a costs order, security was refused. The plaintiffs had a prima facie very strong case, including evidence supporting non-delivery, misleading or deceptive representations, and trust claims; Mr Coulter's current assertion that the omasum was delivered was inconsistent with his earlier communications alleging fraud and salt shipments; the defendants had failed to comply adequately with their undertaking to explain what happened to Mr Luo's funds; and, in all probability, an order for security would bring apparently meritorious...

Court Disposition

Application for security for costs dismissed with costs

Orders

  • ['The applications for security should be dismissed with costs.']