Hardie Holdings Pty Limited v State of New South Wales [2012] NSWSC 1152

Hardie Holdings Pty Limited v State of New South Wales [2012] NSWSC 1152

The Court was satisfied that all plaintiffs other than the eighth plaintiff would be unable to pay the defendant's costs if the defendant succeeded, but found on the credible evidence of Ms Potter and Biodiversity Land Pty Limited's balance sheet that the eighth plaintiff was not in that position and could provide security through the unencumbered property "Goonama". After considering the discretionary factors, including the plaintiffs' impecuniosity, the bona fide nature of the claim, lack of evidence of stultification, absence of undue delay, and some public interest, the Court held that security for costs should be ordered and that the eighth plaintiff's undertaking to provide the...

Jurisdiction
Australia
Judgment Date
25 September 2012
Procedural Posture
Common Law; Procedural and Other Rulings Concerning Security for Costs and Pleadings / Interlocutory Notices of Motion: Defendant's Motion to Strike Out and for Security for Costs, and Plaintiffs' Motion for Leave to Amend Statement of Claim
Outcome
Plaintiffs ordered to amend their statement of claim; security for costs ordered in the form of the eighth plaintiff's title deeds to "Goonama"; costs thrown away by amendments payable by plaintiffs; costs of the defendant's notice of motion reserved.
Legal Topics
['security for Costs' 'leave to Amend Statement of Claim' 'strike Out Application' "corporate Plaintiffs' Capacity to Pay Costs" 'discretionary Factors for Security for Costs' 'public Interest in Costs Discretion']
['civil Procedure' 'costs' 'pleadings' 'corporations'] ['security for Costs' 'leave to Amend Statement of Claim' 'strike Out Application' "corporate Plaintiffs' Capacity to Pay Costs" 'discretionary Factors for Security for Costs' 'public Interest in Costs Discretion']

Case Brief

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Procedural Posture

Common Law; Procedural and Other Rulings Concerning Security for Costs and Pleadings / Interlocutory Notices of Motion: Defendant's Motion to Strike Out and for Security for Costs, and Plaintiffs' Motion for Leave to Amend Statement of Claim

Legal Issues

  1. 1 ["Whether there was reason to believe that the corporate plaintiffs would be unable to pay the defendant's costs if the defendant succeeded and obtained a costs order." 'Whether security for costs should be ordered and, if so, in what form.' 'Whether the eighth plaintiff\'s offer to provide title deeds to the unencumbered property known as "Goonama" should be accepted as security for costs.' 'Whether discretionary factors, including impecuniosity, causation, bona fides, prospects of success, stultification, persons standing behind the plaintiffs, delay and public interest, supported an order for security for costs.' 'How the agreed amendments to the proposed amended statement of claim should be dealt with.']

Ratio Decidendi

The Court was satisfied that all plaintiffs other than the eighth plaintiff would be unable to pay the defendant's costs if the defendant succeeded, but found on the credible evidence of Ms Potter and Biodiversity Land Pty Limited's balance sheet that the eighth plaintiff was not in that position and could provide security through the unencumbered property "Goonama". After considering the discretionary factors, including the plaintiffs' impecuniosity, the bona fide nature of the claim, lack of evidence of stultification, absence of undue delay, and some public interest, the Court held that security for costs should be ordered and that the eighth plaintiff's undertaking to provide the...

Court Disposition

Plaintiffs ordered to amend their statement of claim; security for costs ordered in the form of the eighth plaintiff's title deeds to "Goonama"; costs thrown away by amendments payable by plaintiffs; costs of the defendant's notice of motion reserved.

Orders

  • ['The plaintiffs are to file and serve an amended statement of claim within 28 days.' "The plaintiffs are to pay the defendant's costs thrown away by the amendments." 'The eighth plaintiff is to provide security for costs in the form of the title deeds to their property known as "Goonama".' 'The parties are to bring...