Tenacity Investments Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 535

Tenacity Investments Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 535

Security for costs was appropriate because Tenacity's assets were encumbered, it had failed to produce financial documents, the evidence supported an inference of a risk that it could not pay the tenth respondent's costs if ordered, persons standing behind or next to Tenacity might benefit from the proceedings without showing willingness to contribute to costs risk, and delay was not a disqualifying consideration. The amount was fixed at $30,000 on a rolling basis because the tenth respondent's cost estimates were otherwise reasonable but no allowance was made for senior counsel, whose briefing was only a possibility.

Jurisdiction
Australia
Judgment Date
27 July 2007
Procedural Posture
Notice of Motion for Security for Costs in Proceedings Under S 40 of the Land and Environment Court Act 1979 / Interlocutory Ex Tempore Judgment
Outcome
Notice of motion granted in part; security for costs ordered in the sum of $30,000, with stay on default.
Legal Topics
['security for Costs' 'public Drainage Easement' 'costs Under S 40 of the Land and Environment Court Act 1979' 'exercise of Discretion']
['costs' 'land and Environment' 'civil Procedure'] ['security for Costs' 'public Drainage Easement' 'costs Under S 40 of the Land and Environment Court Act 1979' 'exercise of Discretion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion for Security for Costs in Proceedings Under S 40 of the Land and Environment Court Act 1979 / Interlocutory Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the applicant should provide security for the tenth respondent's costs." "Whether there was a risk that the applicant would not be able to pay the tenth respondent's costs if a costs order were made." 'If security for costs should be ordered, what amount should be ordered.']

Ratio Decidendi

Security for costs was appropriate because Tenacity's assets were encumbered, it had failed to produce financial documents, the evidence supported an inference of a risk that it could not pay the tenth respondent's costs if ordered, persons standing behind or next to Tenacity might benefit from the proceedings without showing willingness to contribute to costs risk, and delay was not a disqualifying consideration. The amount was fixed at $30,000 on a rolling basis because the tenth respondent's cost estimates were otherwise reasonable but no allowance was made for senior counsel, whose briefing was only a possibility.

Court Disposition

Notice of motion granted in part; security for costs ordered in the sum of $30,000, with stay on default.

Orders

  • ['The applicant, Tenacity Investments Pty Limited, is to provide security for the costs of the tenth respondent in the sum of $30,000 by bank guarantee or by payment into a bank account in the joint names of the solicitors for the applicant and the tenth respondent or in such other form as the applicant and the...