TMCM Enterprises Pty Ltd (in liquidation) v The Owners - Strata Plan No 78894 [2023] NSWSC 1637

TMCM Enterprises Pty Ltd (in liquidation) v The Owners - Strata Plan No 78894 [2023] NSWSC 1637

The Court found, on credible evidence of the defendants' solicitors, that GIGH is a corporation lacking substantial assets and failed to provide any financial information despite requests, thus there is reason to believe it could not pay an adverse costs order. The Court's power to order security for costs was therefore enlivened under both UCPR r 42.21 and s 1335 of the Corporations Act. Weighing all discretionary factors, with no evidence of stifling or hardship, and no relevant delay by the defendants, security for costs was appropriate. The quantum was set at discounted figures to reflect overlap between defendants and the nature of the proceedings. A stay was imposed until security...

Parties
First Plaintiff: TMCM Enterprises Pty Ltd (in liquidation); Second Plaintiff: Global Investment Group Holdings Pty Ltd; First Defendant: The Owners – Strata Plan No 78894; Second Defendant: Strata Community Insurance Agencies Pty Ltd; Third Defendant: KatzBergin Loss Adjusters Pty Ltd
Jurisdiction
Australia
Judgment Date
21 December 2023
Procedural Posture
Application for Security for Costs / Interlocutory Decision/orders on Notices of Motion
Outcome
Security for costs ordered; proceedings stayed pending provision of security; costs of motions to defendants.
Legal Topics
Security for Costs, Stay of Proceedings, Corporate Plaintiff, Discretionary Factors on Security for Costs, Costs Orders, Powers Under Uniform Civil Procedure Rules, Corporations Act Security for Costs, Liquidator's Assignments
Civil Procedure Security for Costs Stay of Proceedings Corporate Plaintiff Discretionary Factors on Security for Costs Costs Orders Powers Under Uniform Civil Procedure Rules Corporations Act Security for Costs +1 more

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Parties

TMCM Enterprises Pty Ltd (in liquidation)

First Plaintiff

Global Investment Group Holdings Pty Ltd

Second Plaintiff

The Owners – Strata Plan No 78894

First Defendant

Strata Community Insurance Agencies Pty Ltd

Second Defendant

KatzBergin Loss Adjusters Pty Ltd

Third Defendant

Procedural Posture

Application for Security for Costs / Interlocutory Decision/orders on Notices of Motion

Legal Issues

  1. 1 Whether the Court's power to order security for costs and stay the proceedings is enlivened under UCPR r 42.21 or s 1335 of the Corporations Act for a corporate plaintiff
  2. 2 What is the appropriate amount of security for costs to be ordered against the second plaintiff
  3. 3 Whether any relevant discretionary factors warrant refusing or modifying the security for costs or stay orders

Ratio Decidendi

The Court found, on credible evidence of the defendants' solicitors, that GIGH is a corporation lacking substantial assets and failed to provide any financial information despite requests, thus there is reason to believe it could not pay an adverse costs order. The Court's power to order security for costs was therefore enlivened under both UCPR r 42.21 and s 1335 of the Corporations Act. Weighing all discretionary factors, with no evidence of stifling or hardship, and no relevant delay by the defendants, security for costs was appropriate. The quantum was set at discounted figures to reflect overlap between defendants and the nature of the proceedings. A stay was imposed until security...

Court Disposition

Security for costs ordered; proceedings stayed pending provision of security; costs of motions to defendants.

Orders

  • The second plaintiff, Global Investment Group Holdings Pty Ltd, is to give security for the first defendant's costs in the amount of $65,000.00, security for the second defendant's costs in the amount of $65,000.00, and security for the third defendant's costs in the amount of $90,000.00, such security to be...
  • The proceedings are stayed until such time as each amount of security referred to in order (1) has been provided.