Wainter Pty Ltd ACN 008 725 586 v Freehills (A Firm) (No 2) [2009] FCA 770

Wainter Pty Ltd ACN 008 725 586 v Freehills (A Firm) (No 2) [2009] FCA 770

Given the complexity of the factual and legal issues, the size of the claim, and the overlap between preparation for a substantive mediation and getting the proceeding ready for trial, security should extend up to the point of entry for trial rather than stop at mediation. The respondents' approach to calculating security was generally reasonable, but the claimed item for additional work done to date was inappropriate and expert fees were on the high side, so further security was fixed at $220,000.00 rather than $250,000.00.

Jurisdiction
Australia
Judgment Date
20 July 2009
Procedural Posture
Application for Further Security for Costs / After Close of Pleadings; Application for Further Security for Costs Heard 25 June 2009
Outcome
Further security for costs ordered in favour of the first and second respondents in the sum of $220,000.00, with costs of the application to be paid by the applicant.
Legal Topics
['further Security for Costs' 'quantum of Security' 'stage to Which Security Should Be Ordered' 'bank Guarantee' 'draft Bill of Costs']
['civil Procedure' 'costs' 'security for Costs'] ['further Security for Costs' 'quantum of Security' 'stage to Which Security Should Be Ordered' 'bank Guarantee' 'draft Bill of Costs']

Case Brief

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Procedural Posture

Application for Further Security for Costs / After Close of Pleadings; Application for Further Security for Costs Heard 25 June 2009

Legal Issues

  1. 1 ['What next stage of the proceeding should be covered by a further security for costs order.' 'What quantum of further security for costs should be ordered for the first and second respondents.']

Ratio Decidendi

Given the complexity of the factual and legal issues, the size of the claim, and the overlap between preparation for a substantive mediation and getting the proceeding ready for trial, security should extend up to the point of entry for trial rather than stop at mediation. The respondents' approach to calculating security was generally reasonable, but the claimed item for additional work done to date was inappropriate and expert fees were on the high side, so further security was fixed at $220,000.00 rather than $250,000.00.

Court Disposition

Further security for costs ordered in favour of the first and second respondents in the sum of $220,000.00, with costs of the application to be paid by the applicant.

Orders

  • ["The applicant provide security for the first and second respondents' costs in the proceedings up to the point of entry for trial in the amount of $220,000.00 to be provided by way of bank guarantee in a form acceptable to the Registrar." 'The applicant provide to a registrar a draft form of the proposed bank...