La Rosa Constructions Pty Limited v PWR Developments Pty Limited & Ors [2004] NSWSC 235

La Rosa Constructions Pty Limited v PWR Developments Pty Limited & Ors [2004] NSWSC 235

Given the evidence that both the plaintiff company and its sole shareholder are impecunious and that the plaintiff has provided detailed affidavit material, it is a proper exercise of discretion to refuse an order for security for costs, subject to a condition allowing defendants to monitor financial positions through ongoing affidavit disclosure.

Parties
Plaintiff: La Rosa Constructions Pty Limited; First Defendant: PWR Developments Pty Limited; Second Defendant: Andrew Albert Koolloos; Third Defendant: John Angus Sherwood
Jurisdiction
Australia
Judgment Date
12 March 2004
Procedural Posture
Application for Security for Costs in Civil Proceeding / Interlocutory Motion
Outcome
Defendants' motion for security for costs dismissed, subject to conditions.
Legal Topics
Security for Costs, Corporate Impecuniosity, Discretionary Principles for Security of Costs, Building Contract Disputes
Civil Procedure Building and Construction Law Commercial Law Security for Costs Corporate Impecuniosity Discretionary Principles for Security of Costs Building Contract Disputes

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Parties

La Rosa Constructions Pty Limited

Plaintiff

PWR Developments Pty Limited

First Defendant

Andrew Albert Koolloos

Second Defendant

John Angus Sherwood

Third Defendant

Procedural Posture

Application for Security for Costs in Civil Proceeding / Interlocutory Motion

Legal Issues

  1. 1 Whether the defendants are entitled to an order for security for costs against an impecunious corporate plaintiff
  2. 2 What principles guide the court's discretion in granting or refusing security for costs in these circumstances

Ratio Decidendi

Given the evidence that both the plaintiff company and its sole shareholder are impecunious and that the plaintiff has provided detailed affidavit material, it is a proper exercise of discretion to refuse an order for security for costs, subject to a condition allowing defendants to monitor financial positions through ongoing affidavit disclosure.

Court Disposition

Defendants' motion for security for costs dismissed, subject to conditions.

Orders

  • Plaintiff to procure that Mr La Rosa file and serve monthly affidavits of assets and liabilities with supporting account statements.
  • Costs of the motions to be costs in the proceedings.