Nonox Australia v Certain Underwriters at Lloyds Subscribing to Contract No CV0263CGL [2014] NSWSC 221

Nonox Australia v Certain Underwriters at Lloyds Subscribing to Contract No CV0263CGL [2014] NSWSC 221

Grounds for security for costs have been satisfied as the plaintiff admits it would not be able to meet an adverse costs order; the plaintiff has not discharged the persuasive burden of demonstrating that, as a matter of discretion, security should not be ordered, as there is no sufficient evidence that such an order would stultify the litigation. Insurers are not in a specially fettered position regarding such applications.

Jurisdiction
Australia
Judgment Date
07 March 2014
Procedural Posture
Application for Security for Costs / Interlocutory (security for Costs Application)
Outcome
Plaintiff to provide security for first and second defendants' costs.
Legal Topics
['security for Costs' 'discretion in Interlocutory Applications' 'corporations Act 2001 (cth) S 1335' 'uniform Civil Procedure Rules 2005 (nsw) R 42.21(1)(d)']
['civil Procedure'] ['security for Costs' 'discretion in Interlocutory Applications' 'corporations Act 2001 (cth) S 1335' 'uniform Civil Procedure Rules 2005 (nsw) R 42.21(1)(d)']

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Procedural Posture

Application for Security for Costs / Interlocutory (security for Costs Application)

Legal Issues

  1. 1 ['Whether grounds exist to order security for costs against the plaintiff' 'Whether as a matter of discretion security for costs should be ordered given the circumstances' 'Whether an insurer is in a different position with respect to obtaining security for costs compared to other litigants' 'Whether ordering security would stultify the proceedings']

Ratio Decidendi

Grounds for security for costs have been satisfied as the plaintiff admits it would not be able to meet an adverse costs order; the plaintiff has not discharged the persuasive burden of demonstrating that, as a matter of discretion, security should not be ordered, as there is no sufficient evidence that such an order would stultify the litigation. Insurers are not in a specially fettered position regarding such applications.

Court Disposition

Plaintiff to provide security for first and second defendants' costs.

Orders

  • ["Plaintiff to provide security for first and second defendants' costs. The amount and timing of security to be considered after determining the application to have questions of quantum determined separately."]