Otta International Pty Limited v Asia Pacific Carbon Pte Ltd [2017] NSWSC 780

Otta International Pty Limited v Asia Pacific Carbon Pte Ltd [2017] NSWSC 780

The Court was not satisfied that the third and fourth defendants had shown by credible testimony that there was reason to believe the plaintiff would be unable to pay their costs if they succeeded. The solicitor change and solicitor promotional material were speculative and did not constitute credible evidence of inability to pay, the director's personal property was irrelevant absent a basis connecting it to the plaintiff's ability to pay, and the plaintiff's bank statement showed about $100,000 to its credit. The jurisdictional basis for ordering security for costs was therefore not established.

Jurisdiction
Australia
Judgment Date
08 June 2017
Procedural Posture
Security for Costs Application / Notices of Motion Filed by the Third and Fourth Defendants Heard and Determined
Outcome
Notices of motion dismissed; third and fourth defendants ordered to pay the plaintiff's costs of the notices of motion, if any.
Legal Topics
['security for Costs' 'corporate Plaintiff' 'adverse Costs Order' 'jurisdictional Basis for Security for Costs']
['practice and Procedure'] ['security for Costs' 'corporate Plaintiff' 'adverse Costs Order' 'jurisdictional Basis for Security for Costs']

Case Brief

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Procedural Posture

Security for Costs Application / Notices of Motion Filed by the Third and Fourth Defendants Heard and Determined

Legal Issues

  1. 1 ['Whether there was reason to believe that the plaintiff, being a corporation, would be unable to pay the costs of the third and fourth defendants if ordered to do so.' 'Whether the third and fourth defendants established a jurisdictional basis for an order for security for costs.']

Ratio Decidendi

The Court was not satisfied that the third and fourth defendants had shown by credible testimony that there was reason to believe the plaintiff would be unable to pay their costs if they succeeded. The solicitor change and solicitor promotional material were speculative and did not constitute credible evidence of inability to pay, the director's personal property was irrelevant absent a basis connecting it to the plaintiff's ability to pay, and the plaintiff's bank statement showed about $100,000 to its credit. The jurisdictional basis for ordering security for costs was therefore not established.

Court Disposition

Notices of motion dismissed; third and fourth defendants ordered to pay the plaintiff's costs of the notices of motion, if any.

Orders

  • ['Dismiss the notices of motion filed in court by the third and fourth defendants on 8 June 2017.' "Order the third and fourth defendants to pay the plaintiff's costs of the notices of motion, if any."]