Nonox Australia Pty Ltd v Certain Underwriters at Lloyd's Subscribing to Contract No CV0263CGL [2014] NSWSC 790

Nonox Australia Pty Ltd v Certain Underwriters at Lloyd's Subscribing to Contract No CV0263CGL [2014] NSWSC 790

The plaintiff failed to pay the first security for costs instalment and did not provide evidence identifying those ultimately standing behind the plaintiff or their financial position. The proceedings had been stayed, no formal application was made to vary the security orders, the plaintiff had been on notice of the dismissal application, there had been prior adjournments, there was no reasonable likelihood that security would be provided, and the defendants would suffer prejudice from continuation. It was therefore appropriate to dismiss the proceedings under UCPR r 42.21(3).

Jurisdiction
Australia
Judgment Date
06 June 2014
Procedural Posture
Procedural and Other Rulings / Application by the First and Second Defendants Under UCPR R 42.21(3) for Dismissal of Proceedings After the Plaintiff Failed to Pay an Instalment of Security for Costs
Outcome
Proceedings dismissed; plaintiff ordered to pay the first and second defendants' costs of the proceedings, including the costs of the motion.
Legal Topics
['security for Costs' 'dismissal for Non Compliance With Security for Costs Order' 'stayed Proceedings' 'mediation']
['civil Procedure'] ['security for Costs' 'dismissal for Non Compliance With Security for Costs Order' 'stayed Proceedings' 'mediation']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Application by the First and Second Defendants Under UCPR R 42.21(3) for Dismissal of Proceedings After the Plaintiff Failed to Pay an Instalment of Security for Costs

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed under UCPR r 42.21(3) because the plaintiff failed to comply with an order to provide security for costs.' 'Whether the Court should instead order mediation notwithstanding the stay of the proceedings.' 'Whether the plaintiff had shown that non-payment of security would stultify the proceedings because those ultimately interested in the litigation lacked capacity to fund it.']

Ratio Decidendi

The plaintiff failed to pay the first security for costs instalment and did not provide evidence identifying those ultimately standing behind the plaintiff or their financial position. The proceedings had been stayed, no formal application was made to vary the security orders, the plaintiff had been on notice of the dismissal application, there had been prior adjournments, there was no reasonable likelihood that security would be provided, and the defendants would suffer prejudice from continuation. It was therefore appropriate to dismiss the proceedings under UCPR r 42.21(3).

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the first and second defendants' costs of the proceedings, including the costs of the motion.

Orders

  • ['Proceedings be dismissed.' "The plaintiff pay the first and second defendants' costs of the proceedings, including the costs of the motion."]