Webuildem Pty Ltd (Receivers & Managers Appointed) v Arab Bank Australia Ltd [2014] NSWSC 1058

Webuildem Pty Ltd (Receivers & Managers Appointed) v Arab Bank Australia Ltd [2014] NSWSC 1058

Although Webuildem could not meet an adverse costs order and the Bank had shown the threshold basis for security, the Bank failed to satisfy the Court that further security should be ordered. Webuildem's claim was treated as at least arguable, delay was neutral, the alleged causal link between the Bank's conduct and Webuildem's impecuniosity did not weigh heavily, and the decisive discretionary factor was that ordering security was likely to stultify the proceedings because Webuildem and those standing behind or benefiting from it were unable to provide the security.

Jurisdiction
Australia
Judgment Date
06 August 2014
Procedural Posture
Interlocutory Application for Security for Costs / After Exchange of Evidence in Chief, Including Expert Evidence, and Before Allocation of a Hearing Date
Outcome
Application dismissed with costs
Legal Topics
['security for Costs' 'adverse Costs Order' 'burden of Proof and Evidentiary Onus' 'discretionary Factors' 'arguable and Bona Fide Claim' 'delay' 'impecuniosity' 'stultification of Proceedings']
['practice and Procedure' 'costs'] ['security for Costs' 'adverse Costs Order' 'burden of Proof and Evidentiary Onus' 'discretionary Factors' 'arguable and Bona Fide Claim' 'delay' 'impecuniosity' 'stultification of Proceedings']

Case Brief

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Procedural Posture

Interlocutory Application for Security for Costs / After Exchange of Evidence in Chief, Including Expert Evidence, and Before Allocation of a Hearing Date

Legal Issues

  1. 1 ['Whether further security for costs should be ordered where it was common ground Webuildem could not meet an adverse costs order.' 'Whether discretionary factors disentitled the Bank to the security sought.' "Whether Webuildem's claim was made bona fide and was at least arguable." "Whether the timing of the Bank's application amounted to disentitling delay." "Whether Webuildem's impecuniosity was attributable to the Bank's conduct." 'Whether an order for further security would stultify the proceedings.']

Ratio Decidendi

Although Webuildem could not meet an adverse costs order and the Bank had shown the threshold basis for security, the Bank failed to satisfy the Court that further security should be ordered. Webuildem's claim was treated as at least arguable, delay was neutral, the alleged causal link between the Bank's conduct and Webuildem's impecuniosity did not weigh heavily, and the decisive discretionary factor was that ordering security was likely to stultify the proceedings because Webuildem and those standing behind or benefiting from it were unable to provide the security.

Court Disposition

Application dismissed with costs

Orders

  • ["The Bank's notice of motion of 11 April 2014 is dismissed with costs."]