ASIL Foundation (Lending) Pty Ltd v Langridge [2019] NSWSC 1574

ASIL Foundation (Lending) Pty Ltd v Langridge [2019] NSWSC 1574

The defendants were in substance defendants and were not disentitled from seeking security merely because they advanced a cross-claim arising from the same transaction. The plaintiff's unsigned and unadopted management report, lack of demonstrated liquid assets, limited expected recovery from another judgment, and indication that security would be provided by a person behind the plaintiff gave reason to believe the plaintiff would be unable to pay the defendants' costs if ordered. A broad-brush discount of the estimated counsel fees justified security of $50,000. The request for payment of the $26,000 was refused because it was procedurally inapt and no present entitlement was shown...

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Civil Procedure; Security for Costs in Debt Recovery and Possession Proceedings / Amended Notice of Motion Filed in Court on 7 November 2019 Seeking Security for Costs and Payment of Trust Monies
Outcome
Security for costs ordered; proceedings to be stayed if security is not provided; relief seeking payment of trust monies refused; leave granted to amend the cross-claim; costs in the cause.
Legal Topics
['security for Costs' "corporate Plaintiff's Capacity to Pay Adverse Costs Order" 'whether Moving Party Is in Substance Defendant or Plaintiff' 'unregistered Mortgage' 'cross Claim' 'trust Monies']
['civil Procedure' 'corporations' 'contracts' 'real Property'] ['security for Costs' "corporate Plaintiff's Capacity to Pay Adverse Costs Order" 'whether Moving Party Is in Substance Defendant or Plaintiff' 'unregistered Mortgage' 'cross Claim' 'trust Monies']

Case Brief

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Procedural Posture

Civil Procedure; Security for Costs in Debt Recovery and Possession Proceedings / Amended Notice of Motion Filed in Court on 7 November 2019 Seeking Security for Costs and Payment of Trust Monies

Legal Issues

  1. 1 ['Whether the first and second defendants should be treated in substance as defendants rather than plaintiffs despite their cross-claim.' "Whether there was reason to believe that the plaintiff corporation would be unable to pay the defendants' costs if ordered to do so." 'What amount of security for costs should be ordered.' 'Whether the Court should summarily order payment of the $26,000 retained in the trust account of Diamond Conway Lawyers.']

Ratio Decidendi

The defendants were in substance defendants and were not disentitled from seeking security merely because they advanced a cross-claim arising from the same transaction. The plaintiff's unsigned and unadopted management report, lack of demonstrated liquid assets, limited expected recovery from another judgment, and indication that security would be provided by a person behind the plaintiff gave reason to believe the plaintiff would be unable to pay the defendants' costs if ordered. A broad-brush discount of the estimated counsel fees justified security of $50,000. The request for payment of the $26,000 was refused because it was procedurally inapt and no present entitlement was shown...

Court Disposition

Security for costs ordered; proceedings to be stayed if security is not provided; relief seeking payment of trust monies refused; leave granted to amend the cross-claim; costs in the cause.

Orders

  • ['Within 21 days the plaintiff or an acceptable person on its behalf is to provide security for the costs of the defendants in the amount of $50,000, by cash deposit, bank guarantee or in such other form as may be acceptable to the Registrar.' 'In the event of security not being provided in accordance with Order 1,...