Baycorp Capital Ltd v Dex Consulting Pty Ltd [2010] NSWSC 156

Baycorp Capital Ltd v Dex Consulting Pty Ltd [2010] NSWSC 156

Security for costs was ordered because the Defendants discharged the onus of showing that Baycorp would be unable to meet their reasonable costs if they succeeded, and Baycorp did not show a sufficient reason to refuse security. Baycorp had no assets, was not trading, had no bank account or financial statements, and its impecuniosity was not caused by the Defendants because the monies for the development application were paid by Mr Carter and Baycorp's true claim was for lost profits. There was no stultification, and Mr Carter's undertaking supported rather than defeated an order. The appropriate security was $75,000, staged because future costs were necessarily speculative at the early...

Jurisdiction
Australia
Judgment Date
11 March 2010
Procedural Posture
Notice of Motion Seeking Security for Costs in Proceedings for Damages Arising Out of an Agreement, Negligence, and Alleged Breach of S 52 Trade Practices Act 1974 / Interlocutory Application After Defence Filed
Outcome
Notice of Motion for security for costs granted in part; security ordered in the sum of $75,000, with costs of the motion to be paid by the Plaintiff.
Legal Topics
['security for Costs' 'impecunious Corporate Plaintiff' 'stultification' 'undertaking by Person Standing Behind Company' 'staged Security for Costs']
['civil Procedure' 'costs' 'corporations' 'trade Practices'] ['security for Costs' 'impecunious Corporate Plaintiff' 'stultification' 'undertaking by Person Standing Behind Company' 'staged Security for Costs']

Case Brief

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Procedural Posture

Notice of Motion Seeking Security for Costs in Proceedings for Damages Arising Out of an Agreement, Negligence, and Alleged Breach of S 52 Trade Practices Act 1974 / Interlocutory Application After Defence Filed

Legal Issues

  1. 1 ["Whether Baycorp Capital Ltd was unable to meet the Defendants' reasonable costs if the Defendants succeeded in the litigation." 'Whether security for costs should be refused because Baycorp had a strong case, because its impecuniosity was caused by the Defendants, or because Mr Carter offered an undertaking to pay costs.' 'What amount of security for costs should be ordered and whether it should be staged.' "Whether the Plaintiff should pay the Defendants' costs of the Notice of Motion."]

Ratio Decidendi

Security for costs was ordered because the Defendants discharged the onus of showing that Baycorp would be unable to meet their reasonable costs if they succeeded, and Baycorp did not show a sufficient reason to refuse security. Baycorp had no assets, was not trading, had no bank account or financial statements, and its impecuniosity was not caused by the Defendants because the monies for the development application were paid by Mr Carter and Baycorp's true claim was for lost profits. There was no stultification, and Mr Carter's undertaking supported rather than defeated an order. The appropriate security was $75,000, staged because future costs were necessarily speculative at the early...

Court Disposition

Notice of Motion for security for costs granted in part; security ordered in the sum of $75,000, with costs of the motion to be paid by the Plaintiff.

Orders

  • ['The Plaintiff is to provide security for costs in the sum of $75,000 by payment into Court on the following basis: (a) $25,000 by 25 March 2010; (b) $25,000 by 23 September 2010; (c) $25,000 by 25 February 2011.' 'In respect of each date mentioned in Order (1), if the full amount is not paid by that date the...