Kure v He [2017] NSWSC 1488

Kure v He [2017] NSWSC 1488

Because the plaintiff was resident in Japan and had no assets in Australia, and because the evidence did not establish that enforcement of an Australian costs order in Japan would necessarily be quick, cheap or free of obstacles, the protective purpose of security for costs justified an order. However, the first defendant's evidence of estimated defence costs was thin, so the appropriate discretionary amount was $40,000 rather than the larger amounts sought.

Jurisdiction
Australia
Judgment Date
20 October 2017
Procedural Posture
Application for Security for Costs / Interlocutory Application by the First Defendant Against the Plaintiff
Outcome
Security for costs ordered in the sum of $40,000.
Legal Topics
['security for Costs' 'individual Plaintiff Resident Overseas' 'no Assets in Australia' 'enforcement of Costs Judgment in Japan' 'onus of Proof']
['civil Procedure' 'equity' 'costs'] ['security for Costs' 'individual Plaintiff Resident Overseas' 'no Assets in Australia' 'enforcement of Costs Judgment in Japan' 'onus of Proof']

Case Brief

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Procedural Posture

Application for Security for Costs / Interlocutory Application by the First Defendant Against the Plaintiff

Legal Issues

  1. 1 ['Whether security for costs should be ordered against an individual plaintiff resident in Japan with no assets in Australia.' 'Whether any security should be limited to the costs of enforcing a costs order in Japan.' 'Where the onus lies in establishing that security should be less than the whole costs of the Australian proceedings and enforcement.' "Whether the asserted weakness of the plaintiff's claim or the unsatisfied prior costs order affected the exercise of discretion."]

Ratio Decidendi

Because the plaintiff was resident in Japan and had no assets in Australia, and because the evidence did not establish that enforcement of an Australian costs order in Japan would necessarily be quick, cheap or free of obstacles, the protective purpose of security for costs justified an order. However, the first defendant's evidence of estimated defence costs was thin, so the appropriate discretionary amount was $40,000 rather than the larger amounts sought.

Court Disposition

Security for costs ordered in the sum of $40,000.

Orders

  • ["Order that the plaintiff provide security for the first defendant's costs of the proceedings and of enforcement of any costs order in the sum of $40,000, such security to be provided in a form satisfactory to the Registrar." "Order that the security be provided within 28 days of today's date failing which the...