In the matter of Bondi Beverages Pty Limited [2019] NSWSC 1514

In the matter of Bondi Beverages Pty Limited [2019] NSWSC 1514

Security for costs was ordered because the Second Plaintiff was plainly impecunious, the First Plaintiff's financial position was deteriorating and inadequately evidenced, and there was reason to believe the Plaintiffs could not pay the First Defendant's costs if ordered. The Plaintiffs did not establish that their impecuniosity was caused by Mr Damcevski, that those standing behind them lacked means, that they were substantively defendants, or that the proceedings were of wider public importance. Although the First Defendant's costs evidence was unpersuasive, the Court could conservatively estimate on a broad brush basis that recoverable costs would not be less than $50,000 and order...

Jurisdiction
Australia
Judgment Date
16 September 2019
Procedural Posture
Security for Costs Application in Equity Corporations List Proceedings / Second Application for Security for Costs After Defence Filed
Outcome
The First Defendant's application for security for costs was granted in part, with staged security totalling $50,000 and a stay if security was not provided.
Legal Topics
['security for Costs' "corporate Plaintiffs' Impecuniosity" 'stay of Proceedings' 'quantum of Security for Costs']
['corporations' 'civil Procedure' 'costs'] ['security for Costs' "corporate Plaintiffs' Impecuniosity" 'stay of Proceedings' 'quantum of Security for Costs']

Case Brief

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Procedural Posture

Security for Costs Application in Equity Corporations List Proceedings / Second Application for Security for Costs After Defence Filed

Legal Issues

  1. 1 ["Whether there was reason to believe the plaintiff companies would be unable to pay the First Defendant's costs if ordered to do so." 'Whether discretionary factors justified refusing security for costs, including alleged causation of impecuniosity, public importance, and whether the plaintiffs were substantively defendants.' 'What amount of security for costs should be ordered.']

Ratio Decidendi

Security for costs was ordered because the Second Plaintiff was plainly impecunious, the First Plaintiff's financial position was deteriorating and inadequately evidenced, and there was reason to believe the Plaintiffs could not pay the First Defendant's costs if ordered. The Plaintiffs did not establish that their impecuniosity was caused by Mr Damcevski, that those standing behind them lacked means, that they were substantively defendants, or that the proceedings were of wider public importance. Although the First Defendant's costs evidence was unpersuasive, the Court could conservatively estimate on a broad brush basis that recoverable costs would not be less than $50,000 and order...

Court Disposition

The First Defendant's application for security for costs was granted in part, with staged security totalling $50,000 and a stay if security was not provided.

Orders

  • ['The Plaintiffs provide security for costs, in the form of a guarantee from an Australian authorised deposit-taking institution, or such other form as may be agreed with the First Defendant or the Registrar of the Court, in the amount of $25,000, by 4pm on 8 October 2019.' 'The Plaintiffs provide further security...