Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2008] NSWSC 1329

Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2008] NSWSC 1329

The discretion to order security for costs was enlivened; the plaintiff did not establish that its inability to pay was solely caused by the defendant's conduct, nor that it would have been able to pay otherwise. No discretionary factors precluded the order. Quantum fixed at $220,000, security to be given in tranches.

Parties
Plaintiff: Perform (NSW) Pty Limited; First Defendant: Mev-Aus Pty Limited; Second Defendant: Paul Mitolo; Third Defendant: Bryan Medbury
Jurisdiction
Australia
Judgment Date
20 November 2008
Procedural Posture
Application for Security for Costs / Interlocutory Application; Ex Tempore Judgment
Outcome
Application granted
Legal Topics
Security for Costs, Costs Discretion, Impecuniosity, Building and Construction
Civil Procedure Security for Costs Costs Discretion Impecuniosity Building and Construction

Case Brief

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Parties

Perform (NSW) Pty Limited

Plaintiff

Mev-Aus Pty Limited

First Defendant

Paul Mitolo

Second Defendant

Bryan Medbury

Third Defendant

Procedural Posture

Application for Security for Costs / Interlocutory Application; Ex Tempore Judgment

Legal Issues

  1. 1 Whether security for costs should be ordered
  2. 2 Whether plaintiff's impecuniosity was caused by the defendant's conduct
  3. 3 Whether an order for security for costs would stultify proceedings

Ratio Decidendi

The discretion to order security for costs was enlivened; the plaintiff did not establish that its inability to pay was solely caused by the defendant's conduct, nor that it would have been able to pay otherwise. No discretionary factors precluded the order. Quantum fixed at $220,000, security to be given in tranches.

Court Disposition

Application granted

Orders

  • Plaintiff to give security for defendants' costs in such a manner as may be agreed, or approved by the Registrar: $120,000 by 27 February 2009 and $100,000 within seven days after an order setting the matter down for hearing or referring to a referee.
  • Proceedings stayed until security is given.