Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No 5)

The case of Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No 5) concerns an application by Colliers International (NSW) Pty Limited for further security for costs in proceedings against Arizona. Colliers seeks an order for additional security for costs incurred from March 2011 to the conclusion of the December 2011 hearing. Arizona opposes the application and argues that the delay by Colliers in seeking further security disentitles it from relief, and that Arizona's impecuniosity resulted from Colliers' conduct. The central legal issues for the Court to decide were whether the delay by Colliers disentitles it from obtaining security for costs, whether Arizona's impecuniosity resulted from Colliers' conduct, whether the litigation would be stifled if security were ordered, and whether security should be awarded for costs already incurred.

The Court found that the delay by Colliers did not disentitle it from relief, as the application for further security had been foreshadowed. The Court also rejected Arizona's argument that its impecuniosity resulted from Colliers' conduct, as the evidence established that Arizona and its associated entities had no assets in Australia. The Court further found that the litigation would not be stifled by the making of an order for security, as some of Arizona's note holders might be able to provide security. Finally, the Court held that security should be awarded for costs already incurred, as it would be appropriate to provide some recognition of the costs which had been incurred by Colliers since March 2011, and to take into account Arizona's success in the proceedings thus far.

The Court ordered that Arizona provide security for costs to Colliers in the sum of $250,000 within 28 days of the order. The costs of the motion were to be costs in the proceedings. This decision demonstrates the importance of considering the principles of justice and fairness in determining whether security for costs should be ordered, as well as the need to balance the interests of both parties in litigation.