Capitalink Pty Ltd v Whitnall [2022] NSWDC 396

Capitalink Pty Ltd v Whitnall [2022] NSWDC 396

The plaintiff's alternative security proposal is not sufficiently reliable to protect the defendant from risks of non-payment; therefore, an order for cash security is appropriate. The quantum should reflect a discounted mid-point of estimated recoverable costs, paid in two tranches, balancing the interests of both parties.

Jurisdiction
Australia
Judgment Date
05 September 2022
Procedural Posture
Application for Security for Costs / Interlocutory (decision on Notice of Motion for Security for Costs)
Outcome
Application for security for costs granted
Legal Topics
['security for Costs' 'trustee Companies' 'adequacy of Security' 'quantum of Security']
['civil Procedure' 'costs'] ['security for Costs' 'trustee Companies' 'adequacy of Security' 'quantum of Security']

Case Brief

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Procedural Posture

Application for Security for Costs / Interlocutory (decision on Notice of Motion for Security for Costs)

Legal Issues

  1. 1 ['Whether the plaintiff (respondent) should provide security for costs to the defendant (applicant)' 'Adequacy of the alternative security proposed by the plaintiff as opposed to cash security' 'Quantum of security for costs to be ordered']

Ratio Decidendi

The plaintiff's alternative security proposal is not sufficiently reliable to protect the defendant from risks of non-payment; therefore, an order for cash security is appropriate. The quantum should reflect a discounted mid-point of estimated recoverable costs, paid in two tranches, balancing the interests of both parties.

Court Disposition

Application for security for costs granted

Orders

  • ["Plaintiff to provide security for the defendant's costs in a form acceptable to registrar: $135,000 within 28 days; $70,000 not less than 28 days before final hearing" 'If security is not given, proceeding to be stayed' 'Defendant has liberty to apply for further security' "Costs of defendant's notice of motion to...