Systems Associates Pty Limited v Engeneic Pty Limited and Others [2007] NSWIRComm 179

Systems Associates Pty Limited v Engeneic Pty Limited and Others [2007] NSWIRComm 179

Although the evidence supported some concern that the applicant would be unable to meet a costs order of $171,000, the applicant was not shown to be impecunious, had an arguable s 106 case, no useful finding on delay could be made, and its director Peter Wedd was willing and able to stand behind the company by undertaking to be personally responsible for $56,000 of any costs order. The discretionary factors therefore weighed against granting the respondents' application for security for costs, subject to requiring the undertaking.

Jurisdiction
Australia
Judgment Date
19 July 2007
Procedural Posture
Application for Relief Under S 106 of the Industrial Relations Act 1996; Notice of Motion for Security for Costs / Respondents' Interlocutory Application for Security for Costs Against a Corporate Applicant
Outcome
Respondents' application for security for costs dismissed; applicant's director required to provide a written undertaking; costs reserved.
Legal Topics
['security for Costs' 'unfair Contracts Under S 106 of the Industrial Relations Act 1996' "corporate Applicant's Capacity to Pay Costs" 'discretionary Factors on Security for Costs' 'undertaking by Director']
['industrial Law' 'civil Procedure' 'corporations Law'] ['security for Costs' 'unfair Contracts Under S 106 of the Industrial Relations Act 1996' "corporate Applicant's Capacity to Pay Costs" 'discretionary Factors on Security for Costs' 'undertaking by Director']

Case Brief

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Procedural Posture

Application for Relief Under S 106 of the Industrial Relations Act 1996; Notice of Motion for Security for Costs / Respondents' Interlocutory Application for Security for Costs Against a Corporate Applicant

Legal Issues

  1. 1 ['Whether the applicant was unable to pay a costs order' 'Whether the applicant had an arguable case in the substantive s 106 proceedings' 'Whether the respondents delayed making the application for security for costs' "Whether there was a correlation between the applicant's current financial situation and the subject matter of the s 106 application" 'Whether persons of financial substance stood behind the corporate applicant and were likely and willing to provide security']

Ratio Decidendi

Although the evidence supported some concern that the applicant would be unable to meet a costs order of $171,000, the applicant was not shown to be impecunious, had an arguable s 106 case, no useful finding on delay could be made, and its director Peter Wedd was willing and able to stand behind the company by undertaking to be personally responsible for $56,000 of any costs order. The discretionary factors therefore weighed against granting the respondents' application for security for costs, subject to requiring the undertaking.

Court Disposition

Respondents' application for security for costs dismissed; applicant's director required to provide a written undertaking; costs reserved.

Orders

  • ["The respondents' application is dismissed." "The applicant's director, Peter Wedd is to furnish a written undertaking to the Court within 7 days of the date of this judgment that he will be personally responsible for the payment of $56,000 being costs, or part of a costs order, awarded against the applicant."...