Lysmar Pty Ltd v Lee [2000] NSWSC 662

Lysmar Pty Ltd v Lee [2000] NSWSC 662

Although the defendants delayed in seeking security, no relevant prejudice was shown and the plaintiff was a trustee company with no assets, so security for costs had to be ordered. The quantum should not reflect three unrestricted sets of costs because the defendants were sued jointly, appeared to have substantially the same interests, and separate representation and multiple cross-examination were unlikely to be fully recoverable or reasonable. Averaging two approaches to reasonable costs produced $185,000, to be provided by bank bond in favour of all defendants, with a stay if not provided by 23 June 2000.

Jurisdiction
Australia
Judgment Date
09 June 2000
Procedural Posture
Civil Proceedings for Common Law Damages or Equitable Compensation, Including Claims for Breach of Contract, Statutory Damages and Breach of Fiduciary Duty / Interlocutory Application for Security for Costs Before Listed Hearing
Outcome
Security for costs ordered; proceedings to be stayed if security is not furnished by 23 June 2000; plaintiff to pay the costs of the motion limited to one set of costs for the defendants.
Legal Topics
['security for Costs' 'unnecessary Costs' 'joint Defendants' 'separate Representation' 'costs Agreements' 'trustee Plaintiff With No Assets']
['civil Procedure' 'costs' 'equity' 'trusts'] ['security for Costs' 'unnecessary Costs' 'joint Defendants' 'separate Representation' 'costs Agreements' 'trustee Plaintiff With No Assets']

Case Brief

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Procedural Posture

Civil Proceedings for Common Law Damages or Equitable Compensation, Including Claims for Breach of Contract, Statutory Damages and Breach of Fiduciary Duty / Interlocutory Application for Security for Costs Before Listed Hearing

Legal Issues

  1. 1 ['Whether security for costs should be ordered notwithstanding delay in bringing the application' 'What amount of security for costs should be ordered' 'What form the security should take' 'Whether the defendants should be treated as entitled to more than one set of costs where they were sued jointly and appeared to have the same interests']

Ratio Decidendi

Although the defendants delayed in seeking security, no relevant prejudice was shown and the plaintiff was a trustee company with no assets, so security for costs had to be ordered. The quantum should not reflect three unrestricted sets of costs because the defendants were sued jointly, appeared to have substantially the same interests, and separate representation and multiple cross-examination were unlikely to be fully recoverable or reasonable. Averaging two approaches to reasonable costs produced $185,000, to be provided by bank bond in favour of all defendants, with a stay if not provided by 23 June 2000.

Court Disposition

Security for costs ordered; proceedings to be stayed if security is not furnished by 23 June 2000; plaintiff to pay the costs of the motion limited to one set of costs for the defendants.

Orders

  • ['Security for costs is to be given for $185,000.' 'A bank bond is to be given in favour of all defendants in the total amount of $185,000.' 'If the bank bond is not furnished by 23 June 2000, the proceedings are stayed.' 'The plaintiff is to pay the costs of the motion, but only one set of costs is to be given to...