Kenoss Contractors Pty Limited v Allied Constructions Pty Limited (No 2) [2001] NSWIRComm 36

Kenoss Contractors Pty Limited v Allied Constructions Pty Limited (No 2) [2001] NSWIRComm 36

Given the applicant's present financial difficulties, but also the prospect of improvement in its financial position due to a substantial contract, the connection between the applicant's position and the conduct the subject of the main proceedings, the bona fide nature of the claim, and the balance of justice between the parties, the application for security for costs should be refused at this stage, with liberty for the respondent to renew its application if the applicant's financial position does not improve in six months.

Parties
Applicant: Kenoss Contractors Pty Limited; Respondent: Allied Constructions Pty Limited
Jurisdiction
Australia
Judgment Date
14 March 2001
Procedural Posture
Application Pursuant to S 106 of the Industrial Relations Act 1996 / Interlocutory Application for Security for Costs
Outcome
Application for security for costs refused.
Legal Topics
Security for Costs, Impecuniosity of Company, Judicial Discretion, Interlocutory Relief
Industrial Relations Practice and Procedure Security for Costs Impecuniosity of Company Judicial Discretion Interlocutory Relief

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 20 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Kenoss Contractors Pty Limited

Applicant

Allied Constructions Pty Limited

Respondent

Procedural Posture

Application Pursuant to S 106 of the Industrial Relations Act 1996 / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 Whether the applicant should be ordered to provide security for costs due to its alleged impecuniosity
  2. 2 Discretionary principles governing security for costs in corporate plaintiff cases
  3. 3 Impact of applicant's changing financial position on security for costs application

Ratio Decidendi

Given the applicant's present financial difficulties, but also the prospect of improvement in its financial position due to a substantial contract, the connection between the applicant's position and the conduct the subject of the main proceedings, the bona fide nature of the claim, and the balance of justice between the parties, the application for security for costs should be refused at this stage, with liberty for the respondent to renew its application if the applicant's financial position does not improve in six months.

Court Disposition

Application for security for costs refused.

Orders

  • Application refused.
  • Leave granted to the respondent to make such further application for security of costs as it may be advised after 15 September 2001, unless the applicant has prior to that time provided evidence by affidavit as to its satisfactory financial position.