ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 3) [2024] FCA 1238

ACN 117 641 004 Pty Ltd (in liq) v S&P Global, Inc (No 3) [2024] FCA 1238

Further security for costs is justified due to substantial amendments expanding the applicants' cases, leading to material additional costs for the respondents; the quantum sought is to be discounted for recoverability and delay, reflecting a reasonable estimation rather than precise calculation. Delay by respondents in bringing the application is not disentitling but warrants adjustment; court applies a 'broad brush' approach informed by the scope, scale, and nature of the litigation.

Parties
First Applicant: ACN 117 641 004 Pty Ltd (in liquidation) (in its capacity as trustee of the Vale Cash Management Fund); Second Applicant: City of Cockburn ABN 27 471 341 209; First Applicant: YAF Master (WK-155253) (a company incorporated in Cayman Islands); Second Applicant: Basis Pac-Rim Opportunity Fund (Master) (in voluntary liquidation) (WK-155158) (a company incorporated in Cayman Islands); First Respondent: S&P Global, Inc (a company incorporated in New York); Second Respondent: Standard & Poor's International, LLC (a company incorporated in Delaware)
Jurisdiction
Australia
Judgment Date
25 October 2024
Procedural Posture
Interlocutory Application / Security for Costs—further Security Arising From Amendments to Pleadings
Outcome
Application for further security for costs granted; orders for security made in reduced amounts to reflect recoverability and delay.
Legal Topics
Security for Costs, Amendment of Pleadings, Delay, Quantum of Security, Recoverability of Legal Costs
Civil Procedure Security for Costs Amendment of Pleadings Delay Quantum of Security Recoverability of Legal Costs

Case Brief

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Parties

ACN 117 641 004 Pty Ltd (in liquidation) (in its capacity as trustee of the Vale Cash Management Fund)

First Applicant

City of Cockburn ABN 27 471 341 209

Second Applicant

YAF Master (WK-155253) (a company incorporated in Cayman Islands)

First Applicant

Basis Pac-Rim Opportunity Fund (Master) (in voluntary liquidation) (WK-155158) (a company incorporated in Cayman Islands)

Second Applicant

S&P Global, Inc (a company incorporated in New York)

First Respondent

Standard & Poor's International, LLC (a company incorporated in Delaware)

Second Respondent

Procedural Posture

Interlocutory Application / Security for Costs—further Security Arising From Amendments to Pleadings

Legal Issues

  1. 1 Whether further security for costs should be ordered due to amendments to pleadings
  2. 2 Whether delay in seeking security disentitles respondent to relief
  3. 3 Appropriate quantum and calculation of further security for costs in complex litigation

Ratio Decidendi

Further security for costs is justified due to substantial amendments expanding the applicants' cases, leading to material additional costs for the respondents; the quantum sought is to be discounted for recoverability and delay, reflecting a reasonable estimation rather than precise calculation. Delay by respondents in bringing the application is not disentitling but warrants adjustment; court applies a 'broad brush' approach informed by the scope, scale, and nature of the litigation.

Court Disposition

Application for further security for costs granted; orders for security made in reduced amounts to reflect recoverability and delay.

Orders

  • Within seven days, parties are to confer and provide by email to the Associate to Shariff J any agreed or competing proposed short minutes of orders to give effect to the Court's reasons, including timing of payment of further security.
  • If the parties do not reach agreement, the matters be relisted for further hearing.