ACN 007 528 207 Pty Ltd (in Liquidation) v Bird Cameron and Ors (No 5) No. Scciv-99-1392 - [2002] SASC 236

ACN 007 528 207 PTY LTD (IN LIQUIDATION) V BIRD CAMERON AND ORS (NO 5)
[2002] SASC 236

JUDGE BURLEY. By application dated 8 March 2002 the defendants have sought, pursuant to SCR 100.04, additional security for costs. An initial order for security for costs was made by Bleby J on the 13th day of July 2001: ACN 007 528 207 Pty Ltd (In Liquidation) v Bird Cameron and Ors (2001) 214 LSJS 421. The amount of the security the subject of the order was $40,000.00. The defendants now seek an additional $100,000.00.
SCR 100.04 enables the Court to increase or decrease the amount of security for costs to be provided after the determination of the initial application for security for costs. The application was supported by the affidavit of Mr AJ Keane affirmed on 7 March 2002. Mr Keane stated in his affidavit that he examined the accounts rendered to the defendants since 13 July 2001 when the initial order was made. He has estimated that the defendants incurred costs in relation to this action in excess of $40,000.00 on or before 20 January 2002. In addition, he has exhibited to his affidavit a draft short form bill of costs setting out the costs incurred between 21 January 2002 and 5 March 2002 and an estimate of costs thereafter to the date of trial. Those costs and disbursements, including counsel fees of $40,000.00, are in excess of $100,000.00.
It is apparent from Mr Keane’s affidavit that when the initial application for security for costs was made, there was a serious under‑estimate of the costs to be incurred by the defendants prior to trial.
The application for an increase in security for costs was opposed by the plaintiff. Mr Brohier, on behalf of the plaintiff, approached the matter in two ways: first, he said that if the original application had included the additional $100,000.00 now sought, the plaintiff would have opposed the application overall instead of conceding before Bleby J that it was appropriate for an order for security for costs to be made; and, second, he argued that it was not now open to the Court to award any additional security or, if it was, the additional security should be considerably less than the $100,000.00 sought.
As to the first point, during the course of argument, once the parties’ respective submissions were completed on the point, I ruled that it was not open to the plaintiff to reopen the original application for security for costs by asserting now that the Court should not exercise its discretion to make such an order. I gave ex tempore reasons for that ruling. The effect of my ruling was that the plaintiff was limited to arguing that the defendants did not bring themselves within the principles applicable to an application for an increase in security for costs.
Even without a rule permitting an application for an increase in an order for security for costs, the defendants may apply for such an increase (and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ACN 007 528 207 Pty Ltd (in Liquidation) v Bird Cameron and Ors (No 5) No. Scciv-99-1392 [2002] SASC 236
Case: [2002] SASC 236
Decision Date: 25 July 2002

CaseChat Overview and Summary

The case of ACN 007 528 207 Pty Ltd (in Liquidation) v Bird Cameron and Ors (No 5) involves an application for additional security for costs made by the defendants against the plaintiff. The South Australian Supreme Court was required to determine whether the initial order for security for costs should be increased based on the defendants' affidavits and the subsequent changes in circumstances. The defendants sought an additional $100,000.00 on top of the initial $40,000.00 ordered by the court. The plaintiff opposed the application, arguing that the defendants had underestimated the costs when the initial order was made.

The court considered the legal principles governing applications for security for costs, including the requirement for a material change in circumstances. The court found that the defendants had misjudged the amount of security needed primarily due to an underestimation of the interlocutory applications required before the matter could proceed to trial. The court also noted that the plaintiff's statement of claim had required amendment, which further contributed to the defendants' increased costs. The court acknowledged that the defendants had underestimated the costs and accepted that there had been a material change in circumstances warranting consideration of an increase in security for costs.

After weighing the arguments from both sides, the court determined that an increase in security for costs was appropriate. The court considered the nature and extent of interlocutory applications, the criticisms regarding the quantum of the additional security sought, and the difference between solicitor/client and party/party costs. The court decided that an additional security for costs of $50,000.00 should be allowed, considering all the factors presented. This decision reflects the court's assessment of the necessity for the increase and the need to balance the interests of both parties in the litigation process.

Orders