Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd

Adeva Home Solutions Pty Ltd sought to challenge an order for security for costs in a class action proceeding against Queensland Motorways Management Pty Ltd in the Queensland Supreme Court. The defendant had applied for security for costs, and the parties had agreed on a sum of between $30,000 and $80,000, but disagreed on the form of the security. The plaintiff proposed a deed of indemnity from an English insurer, while the defendant preferred a payment into Court or an unconditional bank guarantee from an Australian bank. The court had to decide whether the plaintiff's proposed form of security was adequate and did not impose an unacceptable disadvantage on the defendant.

The court found that the plaintiff had not established that its proposed form of security was adequate and did not impose an unacceptable disadvantage on the defendant. The plaintiff had not disclosed the cost of providing a bank guarantee or the cost of the alternative form of security proposed by it. The court noted that if it had settled on a figure for the security, another problem would have arisen: the trigger for payment out of Court to the defendant would have been unclear. The court also found that the plaintiff's proposed form of security imposed an unacceptable disadvantage on the defendant, as it did not have access to a fund or asset in Australia against which it could enforce an order for costs. Instead, it faced the costs and delay associated with making demand against a foreign-based insurer, commencing proceedings on the deed if its demand was not met, obtaining judgment in Australia, registering that judgment in England, and then possibly taking enforcement action in England.

The court ordered the plaintiff to provide security for the defendant's costs of and incidental to the proceeding up to and including the case management hearing on 18 December 2020 in the amount of $210,000. The security had to be provided within 14 days and by way of payment into Court or an unconditional bank guarantee from an Australian bank. The plaintiff had to pay the defendant's costs of and incidental to the application on the standard basis, to be assessed if not agreed.