Fanma Pty Ltd (formerly Playup Australia Pty Ltd) v Kay [2020] NSWSC 1823

Fanma Pty Ltd (formerly Playup Australia Pty Ltd) v Kay [2020] NSWSC 1823

Security for costs is appropriate where the plaintiff accepts inability to meet a costs order, delay is sufficiently explained and not unfairly prejudicial, and only the relevant defendant (and not the other) is awarded security, calculated with a discount for duplicated costs and cross-claim elements.

Parties
Plaintiff: Fanma Pty Ltd (formerly Playup Australia Pty Ltd); First Defendant: Ryan Kay; Second Defendant: Alexander Kay
Jurisdiction
Australia
Judgment Date
15 December 2020
Procedural Posture
Security for Costs Application / Interlocutory Decision
Outcome
Plaintiff ordered to provide security for costs of $25,000 to second defendant.
Legal Topics
Security for Costs, Costs Applications, Commercial Litigation, Delay in Application, Cross Claim
Civil Procedure Security for Costs Costs Applications Commercial Litigation Delay in Application Cross Claim

Case Brief

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Parties

Fanma Pty Ltd (formerly Playup Australia Pty Ltd)

Plaintiff

Ryan Kay

First Defendant

Alexander Kay

Second Defendant

Procedural Posture

Security for Costs Application / Interlocutory Decision

Legal Issues

  1. 1 Whether security for costs should be ordered against the plaintiff.
  2. 2 Whether delay in seeking security justifies refusal of the order.
  3. 3 Appropriate quantum of security for costs to be ordered.

Ratio Decidendi

Security for costs is appropriate where the plaintiff accepts inability to meet a costs order, delay is sufficiently explained and not unfairly prejudicial, and only the relevant defendant (and not the other) is awarded security, calculated with a discount for duplicated costs and cross-claim elements.

Court Disposition

Plaintiff ordered to provide security for costs of $25,000 to second defendant.

Orders

  • Plaintiff to provide security for costs of $25,000 to the second defendant (Alexander Kay).
  • If proceedings are stayed due to non-provision of security, second defendant will not proceed with cross claim while stayed.