Construction Management Group Pty Ltd v Freeman & Ors [2003] NSWSC 712

Construction Management Group Pty Ltd v Freeman & Ors [2003] NSWSC 712

Given the concession and supporting evidence that the plaintiff will be unable to pay adverse costs if ordered, and in the absence of evidence that security for costs would stultify the proceedings or that the defendants caused the plaintiff’s impecuniosity, the court’s discretion is properly exercised in ordering security for costs against the plaintiff.

Parties
Plaintiff: Construction Management Group Pty Ltd; 1st Defendant: Steven Martin Freeman; 2nd Defendant: Francesco Leonardo Andreone; 3rd Defendant: William James Madden; 4th Defendant: Gary M. Colman
Jurisdiction
Australia
Judgment Date
06 August 2003
Procedural Posture
Security for Costs Application / Interlocutory (application for Security for Costs)
Outcome
Security for costs granted to all defendants; orders made for the plaintiff to provide security and to pay the costs of the applications.
Legal Topics
Security for Costs, Professional Negligence, Exercise of Discretion
Civil Procedure Security for Costs Professional Negligence Exercise of Discretion

Case Brief

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Parties

Construction Management Group Pty Ltd

Plaintiff

Steven Martin Freeman

1st Defendant

Francesco Leonardo Andreone

2nd Defendant

William James Madden

3rd Defendant

Gary M. Colman

4th Defendant

Procedural Posture

Security for Costs Application / Interlocutory (application for Security for Costs)

Legal Issues

  1. 1 Whether there is reason to believe the plaintiff will be unable to pay the defendants' costs if ordered to do so, enlivening the discretion to order security for costs under Supreme Court Rules Pt 53.2(1)(e) and Corporations Act s 1335.
  2. 2 Whether discretionary factors justify ordering security for costs, including whether such an order would stultify the proceedings, the prospects of success, and whether the defendants’ conduct caused the plaintiff's impecuniosity.

Ratio Decidendi

Given the concession and supporting evidence that the plaintiff will be unable to pay adverse costs if ordered, and in the absence of evidence that security for costs would stultify the proceedings or that the defendants caused the plaintiff’s impecuniosity, the court’s discretion is properly exercised in ordering security for costs against the plaintiff.

Court Disposition

Security for costs granted to all defendants; orders made for the plaintiff to provide security and to pay the costs of the applications.

Orders

  • Plaintiff to provide security for costs to first, second and third defendants in the sum of $125,000, in a form agreed by the parties or as fixed by a master.
  • Liberty to the first, second and third defendants to apply for further security for costs if appropriate prior to hearing, upon further evidence.