KDL Building v Mount [2006] NSWSC 474

KDL Building v Mount [2006] NSWSC 474

Security for costs is to be ordered against KDL Building Pty Ltd because credible evidence demonstrates a significant risk it would be unable to pay an adverse costs order if unsuccessful, and discretionary considerations—such as lack of evidence from the sole director/shareholder to make assets available and no evidence of oppression or causative impecuniosity—support that order. The amount of security is set based on reasonable assessment of minimum necessary costs, in two stages pre-trial and trial.

Parties
Plaintiff: KDL Building Pty Ltd; Defendant: Duncan Mount; Defendant: Sally Mount
Jurisdiction
Australia
Judgment Date
21 April 2006
Procedural Posture
Civil / Interlocutory (application for Security for Costs)
Outcome
Application for security for costs granted.
Legal Topics
Security for Costs, Corporate Plaintiff Impecuniosity, Discretionary Considerations in Costs, Home Building Contract
Civil Procedure Equity Construction Law Security for Costs Corporate Plaintiff Impecuniosity Discretionary Considerations in Costs Home Building Contract

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Parties

KDL Building Pty Ltd

Plaintiff

Duncan Mount

Defendant

Sally Mount

Defendant

Procedural Posture

Civil / Interlocutory (application for Security for Costs)

Legal Issues

  1. 1 Whether the Court should order security for costs against an impecunious corporate plaintiff under Corporations Act 2001 (Cth) s 1335(1) and/or Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1)(d)
  2. 2 If so, what quantum and terms should be imposed for that security

Ratio Decidendi

Security for costs is to be ordered against KDL Building Pty Ltd because credible evidence demonstrates a significant risk it would be unable to pay an adverse costs order if unsuccessful, and discretionary considerations—such as lack of evidence from the sole director/shareholder to make assets available and no evidence of oppression or causative impecuniosity—support that order. The amount of security is set based on reasonable assessment of minimum necessary costs, in two stages pre-trial and trial.

Court Disposition

Application for security for costs granted.

Orders

  • Plaintiff to provide security for the defendants' costs in a form acceptable to the Registrar: $49,100 within 28 days; a further $31,000 not less than 28 days before final hearing or reference.
  • Proceedings to be stayed if security is not given as ordered.