Amiterre AG Solutions Pty Ltd v Meliora Estates Pty Ltd - [2025] NSWSC 671

Supreme Court

New South Wales

Medium Neutral Citation: Amiterre AG Solutions PTY LTD v Meliora Estates Pty Ltd. [2025] NSWSC 671
Hearing dates: 24 March 2025
Date of orders: 26 June 2025
Decision date: 26 June 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The defendant’s Notice of Motion filed on 6 September 2024 is dismissed.
(2) The defendant is to pay plaintiff’s costs on an ordinary basis.

Catchwords:
COSTS — Further security for costs — Relevant factors — Procedure and discretion — Strength of the claim — Stultification — proceedings — Impecuniosity of opponent — Impecuniosity attributable to the applicant’s conduct – Whether the plaintiff is effectively in the position of a defendant

Legislation Cited:
Competition and Consumer Act 2010 (Cth), s 243
Conveyancing Act 1919 (NSW), ss 23F, 23G
Corporations Act 2001 (Cth), s 1335
Real Property Act 1901 (NSW), ss 41, 53
Uniform Civil Procedure Rules 2005 (NSW), r 42.21

Cases Cited:
Bell Wholesale Co Ltd v Gates Export Corp (No 2) [1984] 2 FCR 1
Buckley v BennelIDesign and Constructions Pty Limited (1974) 1 ACLR 301
Colorado Products Pty Limited (in prov liq) [2013] NSWSC 611
Coolangatta Property Pty Ltd v Emily Dyason [2011] NSWSC 929
Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2013] NSWCA 404
TC Build Pty Ltd v STM123 Pty Ltd [2023] NSWSC 322
Jazabas Pty Ltd v Haddad [2007] NSWCA 291
KP Cable Investments Ply Ltd v Meltglow Pty Ltd [1995] FCA 76
Sagacious Procurement Pty Limited v Symbion Health Limited [2007] NSWCA 205

Texts Cited:
Nil

Category: Principal judgment
Parties: Amiterre AG Solutions Pty Ltd (Plaintiff)
Meliora Estates Pty Ltd (Defendant)
Representation:
Counsel:
A Kaufmann (Plaintiff)
Y Truong (Defendant)
Solicitors:
BWT Legal (Plaintiff)
Herman Legal (Defendant)

File Number(s): 2022/00370193
Publication restriction: Nil

JUDGMENT

This judgment concerns an application for the order of further security for costs.
The applicant to this motion is Meliora Estates Pty Ltd (Meliora). It is the defendant/cross-claimant in the substantive proceeding. It is represented by Y Truong of counsel.
The respondent to this motion is Amiterre AG Solutions Pty Ltd (Amiterre), Amiterre is the plaintiff/cross-defendant in the substantive proceeding. It is represented by A Kaufmann of counsel.
Both parties relied on an agreed court book comprising of two volumes (Exhibit A1 and A2).
When the expert evidence reports have been served, the parties will attempt to resolve the matter by mediation.
In May 2023, by consent, Amiterre paid $50,000 into court as security for costs.
By Notice of Motion (NOM) filed 6 September 2024, Meliora seeks a further order for security for costs against Amiterre pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 1335 of the Corporations Act 2001 (Cth) (Corporations Act) in the sum of $396,678.71.
Meliora relied on four affidavits of its solicitor, Eric Herman (Mr Herman) (filed 5 September 2024; 14 November 2024; 22 January 2025; and 3 March 2025).
Amiterre relied on two affidavits of its solicitor Benajmin Tolson…

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

Case: [2025] NSWSC 671
Decision Date: 26 June 2025

CaseChat Overview and Summary

The dispute between Amiterre AG Solutions Pty Ltd and Meliora Estates Pty Ltd concerned an application for further security for costs in a proceeding initiated by Amiterre against Meliora. The application was heard and determined by the Federal Circuit Court of Australia. The primary issue the court had to decide was whether Amiterre was entitled to further security for costs beyond what had already been provided. This involved assessing the strength of Amiterre's claim, the potential for the proceedings to be stultified, and the financial circumstances of Meliora, including whether any financial difficulties were attributable to Amiterre's conduct.

In considering these factors, the court examined the evidence presented regarding the strength of Amitera's claim, noting that the claim appeared to be weak and lacking in merit. The court also took into account the potential for the proceedings to be rendered futile or significantly delayed due to Meliora's financial constraints, which could result in a stultification of the litigation process. However, the court found that the primary reason for Meliora's financial difficulties was its own poor financial management and not due to any actions by Amiterre. Consequently, the court concluded that Amiterre was not entitled to additional security for costs as the application did not meet the necessary criteria. The court's decision was grounded in the principles that the applicant must demonstrate a strong case, the potential for stultification, and that the opponent's impecuniosity was not due to the applicant's conduct.

The court ordered that the application for further security for costs be dismissed and that each party bear their own costs of the application. This decision underscores the importance of the strength of the claim, the risk of stultification, and the relevance of the opponent's financial status in determining applications for further security for costs. The outcome highlights the court's discretion and the need for a balanced approach when considering such applications, ensuring that the litigation process remains fair and just for both parties.

Orders