Sydney Construction Co Pty Ltd v Pasupati [2006] NSWDC 33

Sydney Construction Co Pty Ltd v Pasupati [2006] NSWDC 33

Because the plaintiff's impecuniosity was effectively conceded and the evidence showed it would be unable to pay the defendant's costs if it lost, the basis for security under r 42.21 (1) (d) was established. The plaintiff did not show that delay or the alleged causation of its impecuniosity justified refusing security. However, past costs and costs associated with the motion or cross-claim should not be included, and the defendant's $70,000.00 estimate was excessive. A global assessment of the probable recoverable costs of defending the plaintiff's claim justified security of $35,000.00.

Jurisdiction
Australia
Judgment Date
26 May 2006
Procedural Posture
Application for Security for Costs in Civil Proceedings Arising From a Construction Contract Dispute / Interlocutory Notice of Motion After Transfer From the Consumer, Trade and Tenancy Tribunal to the District Court
Outcome
The defendant's application for security for costs was granted in part; the plaintiff was required to provide security of $35,000.00 and the proceedings brought by the plaintiff were stayed until security was provided.
Legal Topics
['security for Costs' 'impecunious Corporate Plaintiff' 'delay in Bringing Application' 'causation of Impecuniosity' 'amount and Form of Security' 'stay of Proceedings']
['civil Procedure' 'costs' 'construction Law'] ['security for Costs' 'impecunious Corporate Plaintiff' 'delay in Bringing Application' 'causation of Impecuniosity' 'amount and Form of Security' 'stay of Proceedings']

Case Brief

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Procedural Posture

Application for Security for Costs in Civil Proceedings Arising From a Construction Contract Dispute / Interlocutory Notice of Motion After Transfer From the Consumer, Trade and Tenancy Tribunal to the District Court

Legal Issues

  1. 1 ["Whether there was reason to believe the plaintiff, being a corporation, would be unable to pay the defendant's costs if ordered to do so." 'Whether delay by the defendant in bringing the application justified refusing security for costs.' "Whether the defendant's conduct caused or contributed to the plaintiff's impecuniosity so as to justify refusing security for costs." 'What amount of security was sufficient in the circumstances.']

Ratio Decidendi

Because the plaintiff's impecuniosity was effectively conceded and the evidence showed it would be unable to pay the defendant's costs if it lost, the basis for security under r 42.21 (1) (d) was established. The plaintiff did not show that delay or the alleged causation of its impecuniosity justified refusing security. However, past costs and costs associated with the motion or cross-claim should not be included, and the defendant's $70,000.00 estimate was excessive. A global assessment of the probable recoverable costs of defending the plaintiff's claim justified security of $35,000.00.

Court Disposition

The defendant's application for security for costs was granted in part; the plaintiff was required to provide security of $35,000.00 and the proceedings brought by the plaintiff were stayed until security was provided.

Orders

  • ["The plaintiff is to provide security for the defendant's costs of defending the proceedings by paying into court the sum of $35,000.00 or by otherwise providing security for that amount in a manner satisfactory to the defendant." 'Until that security is provided, there will be a stay of the proceedings brought by...