Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd

In the matter of *Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd*, the respondent sought security for the costs of an appeal. The primary dispute concerned whether the respondent had established sufficient grounds to warrant an order for security for costs against the appellant.

The court was required to determine whether there was reason to believe that the appellant would be unable to pay the costs of the appeal, pursuant to rule 42.21(1)(d) of the Uniform Civil Procedure Rules (UCPR) and section 1335(1) of the Corporations Act. Additionally, the court considered whether the appellant had divested assets with the intention of avoiding the consequences of the proceedings, as contemplated by rule 42.21(1)(f) of the UCPR, and whether any special circumstances existed that would justify an order for security for costs under rule 51.50 of the UCPR.

Macfarlan JA found that the respondent had not established the necessary grounds to justify an order for security for costs. Specifically, the respondent failed to demonstrate that the appellant would be unable to pay the costs of the appeal, nor was there evidence of asset divestment with the intent to avoid the consequences of the proceedings. Furthermore, no special circumstances were identified that would warrant the imposition of security for costs.

Consequently, the respondent's notice of motion was dismissed, and the respondent was ordered to pay the costs of the application.