Hellen & Fordyce v Alex G Grivas Pty Limited [2002] NSWSC 1019

Hellen & Fordyce v Alex G Grivas Pty Limited [2002] NSWSC 1019

Because the plaintiffs had adequately outlined before the application the basis for opposing security for costs against liquidators, and the defendant elected not to proceed after seeing the force of that opposition, it was appropriate for the defendant to pay the plaintiffs' costs of the application. There was no basis for indemnity costs and no evidentiary reason to depart from the prima facie position under Part 52A Rule 9 that interlocutory costs are not payable until the conclusion of the proceedings.

Jurisdiction
Australia
Judgment Date
28 October 2002
Procedural Posture
Application by Liquidators Under S 511 of the Corporations Act 2001 (cth); Interlocutory Application for Security for Costs / Interlocutory Costs Ruling After the Defendant Elected Not to Proceed With Its Security for Costs Application
Outcome
The defendant's application for security for costs was dismissed; the defendant was ordered to pay the plaintiffs' costs of the application on the usual basis; an order that the costs be paid forthwith under Part 52A Rule 9 was refused.
Legal Topics
['winding Up' "liquidators' Applications to Court" 'security for Costs Against Liquidators' 'personal Costs Liability of Liquidators' 'payment of Interlocutory Costs Before Conclusion of Proceedings']
['corporations' 'civil Procedure' 'costs'] ['winding Up' "liquidators' Applications to Court" 'security for Costs Against Liquidators' 'personal Costs Liability of Liquidators' 'payment of Interlocutory Costs Before Conclusion of Proceedings']

Case Brief

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Procedural Posture

Application by Liquidators Under S 511 of the Corporations Act 2001 (cth); Interlocutory Application for Security for Costs / Interlocutory Costs Ruling After the Defendant Elected Not to Proceed With Its Security for Costs Application

Legal Issues

  1. 1 ["Whether the defendant should pay the plaintiffs' costs of the defendant's interlocutory application for security for costs after electing not to proceed with it." 'Whether costs should be ordered on an indemnity basis.' 'Whether the Court should order under Part 52A Rule 9 of the Supreme Court Rules that the interlocutory costs be paid forthwith before conclusion of the proceedings.']

Ratio Decidendi

Because the plaintiffs had adequately outlined before the application the basis for opposing security for costs against liquidators, and the defendant elected not to proceed after seeing the force of that opposition, it was appropriate for the defendant to pay the plaintiffs' costs of the application. There was no basis for indemnity costs and no evidentiary reason to depart from the prima facie position under Part 52A Rule 9 that interlocutory costs are not payable until the conclusion of the proceedings.

Court Disposition

The defendant's application for security for costs was dismissed; the defendant was ordered to pay the plaintiffs' costs of the application on the usual basis; an order that the costs be paid forthwith under Part 52A Rule 9 was refused.

Orders

  • ['The defendant is to pay the costs of the plaintiffs of the present application.' 'The application is dismissed.' 'The Court declined to make an order altering the prima facie position under Part 52A Rule 9.']