Stateland Developments Pty Ltd v Cavassini Developments Pty Ltd [2010] NSWSC 1299

Stateland Developments Pty Ltd v Cavassini Developments Pty Ltd [2010] NSWSC 1299

The plaintiff did not convincingly establish that the basis for the security order no longer existed: although its financial position had improved, there was insufficient evidence that it could satisfy a potential costs order, including no up-to-date profit and loss statement, balance sheet, or adequate summary of assets and liabilities. The consent security order should therefore not be set aside. However, because the plaintiff had deposited the amount of security with its solicitor and could provide it by 5 October 2010, and because the delay did not seriously jeopardise the defendant, dismissal was not warranted; the appropriate order was a permanent stay unless security was provided...

Jurisdiction
Australia
Judgment Date
01 October 2010
Procedural Posture
Equity Division, Technology and Construction List Proceeding / Notices of Motion Concerning Security for Costs
Outcome
Unless security is given in accordance with the order of 28 April 2010 by 5 October 2010, the proceedings be permanently stayed.
Legal Topics
['security for Costs' 'corporate Impecuniosity' 'variation of Consent Orders' 'stay of Proceedings' 'costs of Motions']
['civil Procedure' 'costs'] ['security for Costs' 'corporate Impecuniosity' 'variation of Consent Orders' 'stay of Proceedings' 'costs of Motions']

Case Brief

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Procedural Posture

Equity Division, Technology and Construction List Proceeding / Notices of Motion Concerning Security for Costs

Legal Issues

  1. 1 ["Whether the plaintiff's claim should be dismissed or stayed for failure to provide security for costs ordered by consent." 'Whether the consent order for security for costs should be set aside or varied because of a change in circumstances.' 'Whether time to provide security should be extended to 5 October 2010.']

Ratio Decidendi

The plaintiff did not convincingly establish that the basis for the security order no longer existed: although its financial position had improved, there was insufficient evidence that it could satisfy a potential costs order, including no up-to-date profit and loss statement, balance sheet, or adequate summary of assets and liabilities. The consent security order should therefore not be set aside. However, because the plaintiff had deposited the amount of security with its solicitor and could provide it by 5 October 2010, and because the delay did not seriously jeopardise the defendant, dismissal was not warranted; the appropriate order was a permanent stay unless security was provided...

Court Disposition

Unless security is given in accordance with the order of 28 April 2010 by 5 October 2010, the proceedings be permanently stayed.

Orders

  • ['Unless security is given in accordance with the order of 28 April 2010 by 5 October 2010, the proceedings be permanently stayed.' "The plaintiff pay the defendant's costs of both notices of motion."]