Matiukevitch v AG&S Building Systems Pty Ltd [2007] NSWIRComm 174

Matiukevitch v AG&S Building Systems Pty Ltd [2007] NSWIRComm 174

The respondent did not establish exceptional circumstances justifying security for costs against a natural person. The applicant had at least an arguable s 106 case, was not shown to be unable to meet a costs order given his income and available funds, the Memorandum of Understanding did not appear champertous but rather in the nature of a loan, and his Tasmanian residence carried little or no weight because there was no evidence he left New South Wales to avoid costs and enforcement in Tasmania was available. Although there was no appreciable delay, an order would not shut him out, and the undertaking issue counted to some extent for the respondent, the balance of discretionary factors...

Jurisdiction
Australia
Judgment Date
10 July 2007
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Respondent's Notice of Motion Seeking Security for Costs
Outcome
Respondent's application for security for costs dismissed; costs reserved.
Legal Topics
['security for Costs' 'unfair Contracts Under S 106' 'champerty' 'interstate Residence' 'discretionary Factors' 'costs']
['industrial Law' 'civil Procedure'] ['security for Costs' 'unfair Contracts Under S 106' 'champerty' 'interstate Residence' 'discretionary Factors' 'costs']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Respondent's Notice of Motion Seeking Security for Costs

Legal Issues

  1. 1 ["Whether the applicant's substantive s 106 application had reasonable prospects or was arguable." 'Whether the applicant had limited assets or was unable to meet a costs order.' 'Whether the Memorandum of Understanding between the applicant and Wide Span constituted a champertous arrangement contrary to public policy.' "What significance should be given to the applicant's residence in Tasmania and absence of assets in New South Wales." 'Whether the respondent delayed in bringing the security for costs application.' "Whether an order for security for costs would prejudice or impede the applicant's pursuit of the proceedings."]

Ratio Decidendi

The respondent did not establish exceptional circumstances justifying security for costs against a natural person. The applicant had at least an arguable s 106 case, was not shown to be unable to meet a costs order given his income and available funds, the Memorandum of Understanding did not appear champertous but rather in the nature of a loan, and his Tasmanian residence carried little or no weight because there was no evidence he left New South Wales to avoid costs and enforcement in Tasmania was available. Although there was no appreciable delay, an order would not shut him out, and the undertaking issue counted to some extent for the respondent, the balance of discretionary factors...

Court Disposition

Respondent's application for security for costs dismissed; costs reserved.

Orders

  • ["The respondent's notice of motion seeking an order for security for costs is dismissed." 'Costs are reserved.']