Azmin Firoz Daya v CX Reinsurance Company Limited

The plaintiff, Azmin Firoz Daya, brought an action against CX Reinsurance Company Limited in the Supreme Court of New South Wales, claiming damages for alleged breaches of contract and misrepresentation. The defendant sought an order for security for costs, arguing that the plaintiff, who resided outside Australia, was not suing for his or her own interests and was instead acting on behalf of a third party. The plaintiff opposed the application for security for costs, contending that he was pursuing the matter for his own benefit and that the involvement of a commercial litigation funder did not alter this fact. The court had to determine whether the plaintiff was required to provide security for costs and, if so, the appropriate amount.

The court considered the relevant legal principles and factors for granting an order for security for costs, including the plaintiff's residence outside the jurisdiction and the nature of the funding arrangements. The court acknowledged the distinction between commercial litigation funding and third-party funding to enable a plaintiff to meet a debt to the funder. The court found that the plaintiff was not suing for his or her own interests, as he was acting on behalf of the funder. However, the court noted that the presence of a commercial litigation funder did not automatically disqualify the plaintiff from being considered as suing for his or her own interests. The court held that the plaintiff's lack of residence in Australia and the nature of the funding arrangement were relevant factors, but not determinative, in deciding whether security for costs was appropriate.

The court determined that security for costs was necessary in this case and set the amount at $150,000. The court found that the plaintiff's lack of residence in Australia and the nature of the funding arrangement warranted an order for security for costs. The court also noted that the plaintiff had not demonstrated that he was unable to meet the costs of the proceedings if ordered to do so. The court ordered the plaintiff to provide security for costs in the amount of $150,000 within 28 days of the judgment. The defendant was ordered to pay the costs of the application for security for costs on an indemnity basis.