Hera Project Pty Ltd v Bisognin
[2017] VSC 112
•17 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 03457
| HERA PROJECT PTY LTD (ACN 163 685 041) | Plaintiff |
| v | |
| GINO ANDREW BISOGNIN AND LEAH JOAN BISOGNIN | Defendants |
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JUDGE: | Judicial Registrar Matthews |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 March 2017 |
DATE OF JUDGMENT: | 17 March 2017 |
CASE MAY BE CITED AS: | Hera Project Pty Ltd v Bisognin & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 112 |
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PRACTICE AND PROCEDURE – Costs – Security for costs – Enlivening of jurisdiction – Discretionary factors to be taken into account – Delay – Proceeding listed for imminent trial on expedited basis – Discretionary balance against ordering security for costs against plaintiff – Corporations Act 2001 (Cth), s 1335(1) – Supreme Court (General Civil Procedure) Rules 2015, r 62.02 – US Realty Investments LLC No. 1 & Ors v Need [2013] VSC 590 – Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577 – Colmax Glass Pty Ltd v Polytrade Pty Ltd [2013] VSC 311.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Whelen | Russell Kennedy |
| For the Defendants | Mr J A Ribbands with Mr W G Stark | TF Grundy |
JUDICIAL REGISTRAR:
Introduction
By summons filed 8 March 2017, the defendants, Gino Bisognin and Leah Bisognin, seek security for their costs of this proceeding in the amount of $250,000 (being the costs of pre-trial preparation and the hearing) and an immediate stay until security is provided. The defendants rely on an affidavit from their solicitor, Terence Francis Grundy, sworn 7 March 2017 (‘Grundy Affidavit’).
The plaintiff, Hera Project Pty Ltd, opposes the application and relies on an affidavit from its solicitor, Leonard Adrian Warren of Russell Kennedy, affirmed 10 March 2017 (‘Warren Affidavit’).
The defendants’ application has been referred to me for hearing and determination pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), by order made on the Court’s own motion on 8 March 2017.
Given the timing of this application in the context of a trial fixed for 27 March 2017, the Court has endeavoured to hear and determine the application quickly. The parties both filed affidavit material and made submissions, having also provided written outlines on the morning of the hearing. The Court has been assisted by both parties’ counsel in this regard. I have read all of this material and have taken it into account, however given the time constraints I have not referred to it in detail. I have considered and dealt with all of the discretionary factors raised by the parties.
Applicable Law
The principles concerning an application for security for costs are well established and are referred to in many decisions of this Court, including US Realty Investments LLC No.1 & Ors v Need [2013] VSC 590 (‘US Realty’) at paragraphs [18]-[38]. For convenience I adopt that summary. Rule 62.02 of the Rules and section 1335 of the Corporations Act 2001 (Cth) apply.
In summary:
(a) for the jurisdiction to be enlivened, one of the grounds set out in r 62.02 or in section 1335 of the Corporations Act 2001 (Cth) must apply. Here, the relevant ground is the plaintiff’s financial position: if it appears by credible testimony that there is reason to believe that the plaintiff will be unable to pay the defendants’ costs if the defendants are successful, then the Court may order that security for those costs be given;
(b) once the jurisdiction is enlivened, it is then a matter for the Court’s discretion as to whether security ought be awarded. That discretion is unfettered, although it must be exercised judicially;
(c) the defendants bear the burden of proof in persuading the Court to order security for costs, however if the plaintiff asserts, as it does here, that an order for security would stultify the litigation, then the plaintiff bears the onus of proof in that regard;[1]
[1]Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, Maxwell P and Buchanan JA at [21], [22].
(d) whether the plaintiff’s lack of funds has been caused or contributed to by the conduct of the defendants in relation to the transaction the subject of the claim is a factor to be taken into account;[2]
[2]The applicable principles are summarised by Derham AsJ in Colmax Glass Pty Ltd v Polytrade Pty Ltd [2013] VSC 311 at [20(b)].
(e) relevant to the exercise of the Court’s discretion is whether the plaintiff’s claim is made bona fide and has reasonable prospects of success;
(f) delay in applying for security may be a factor against granting security: it is incumbent on a defendant who wishes to obtain security once it is (or ought reasonably be) aware that the plaintiff company would be unable to meet an order for costs to apply promptly for that relief.[3] The plaintiff company is entitled to know its position in relation to security at the outset, before it embarks to any real extent on its litigation and before it makes a substantial financial commitment to litigating its claim;[4]
(g) where the defendants make a counterclaim which is likely to canvass substantially the same facts as that required for the plaintiff’s claim, or where the relationship between the parties and the subject matter of the dispute is one where the plaintiff’s claim can be seen as defensive in character, the Court may see it as inappropriate to order security for costs;[5] and
(h) as noted in US Realty, exercising its discretion involves the Court in carrying out a balancing exercise between the injustice to the plaintiff if the grant of security prevents it from pursuing a proper claim against the injustice to the defendants if no security is ordered and they are ultimately successful but unable to recover their costs from the plaintiff.[6]
[3]Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577 (‘Trility’) at [56] (Croft J), referring to Christou v Stanton Partners Australasia Pty Ltd [2011] WASC 176.
[4]See Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301 at 309; Smail v Burton; Re Insurance Assocs Pty Ltd (in liq) [1975] VR 776.
[5]See Colmax Glass Pty Ltd v Polytrade Pty Ltd [2013] VSC 311 at [20(c)] for a summary.
[6][2013] VSC 590 at [22], referring to Smithers J in Tradestock Pty Ltd v TNT (Management) Pty Ltd (1977) 14 ALR 52 at 56.
Background
The background to this proceeding is lengthy and complex, and involves a number of different proceedings between these parties. It need not be recited in detail here, although a summary of the procedural history is required for the context for this application. I rely on the background to this dispute as set out by Macaulay J in this proceeding when considering the plaintiff’s application for interim relief,[7] by Sloss J in a related proceeding[8] and by the Court of Appeal in that related proceeding.[9]
[7]Hera Project Pty Ltd v Bisognin & Anor [2016] VSC 591.
[8]Bisognin v Hera Project Pty Ltd [2016] VSC 75.
[9]Bisognin v Hera Project Pty Ltd [2016] VSCA 322.
This is the third proceeding initiated in this Court by either of the parties concerning the same subject matter, being disputes over a contract initially entered into in 2012 between the defendants and a third party for the sale by the defendants of part of their land. The plaintiff was subsequently nominated as purchaser under that contract. A ‘replacement’ contract was executed in March 2015 by the parties.
The first proceeding was commenced by the plaintiff in late 2013 and was settled in late 2014 with the parties agreeing to enter into a new contract of sale for the same portion of land. That contract, executed in March 2015, is the subject matter of the second and third proceedings.
The second proceeding was commenced by the defendants in August 2015 to obtain answers, pursuant to s 49(1) of the Property Law Act 1958, to three questions which had become disputed. The first question, as to whether the deposit payable by the plaintiff became payable upon certification of the plan of subdivision by the local council or upon registration of the plan of subdivision by the registrar of titles, was held to be the latter by Cameron J on 25 August 2015.[10] The second and third questions were the subject of a 5 day trial before Sloss J in December 2015, with her Honour’s reasons for judgment being delivered on 4 March 2016 and orders giving effect to those reasons being made on 22 June 2016. Her Honour found that the contract required the defendants to make payments of money to the public authorities to secure the registration of the plan of subdivision (the third question) and that while the parties were entitled to terminate the contract if the plan of subdivision was not registered by 25 August 2015 (the second question), the date upon which either party could terminate the contract on that basis was extended to 31 August 2016.
[10]Bisognin v Hera Project Pty Ltd [2015] VSC 647.
This proceeding, the third proceeding, was commenced by the plaintiff on 26 August 2016. The plaintiff sought declarations and injunctions (interim and permanent) to restrain the defendants from terminating the contract. The plaintiff also sought specific performance, alternatively injunctions (interim and permanent), requiring the defendants to take certain steps under the contract to achieve completion. Those steps included complying with the requirements of various public authorities to make payments and/or enter into agreements to enable the registration of the plan of subdivision to take place. Macaulay J, sitting in the Practice Court, made an interim order on 30 August 2016 restraining the defendants from terminating the contract until further order, and that injunction was continued on 3 October 2016 following a further hearing before his Honour on 13 September 2016. In that subsequent hearing, his Honour declined to make an order for specific performance or the mandatory injunctions sought by the plaintiff.
On 29 August 2016, the defendants filed an application for leave to appeal the decision made by Sloss J in the second proceeding, along with an application for an extension of time for filing their application for leave to appeal (that extension was granted on 29 September 2016). The application for leave to appeal, along with the plaintiff’s application to set aside the Judicial Registrar’s order granting the extension of time, was heard by the Court of Appeal on 9 November 2016 and reasons for decision were delivered on 16 December 2016. The Court of Appeal refused the application to set aside the decision extending the time for applying for leave to appeal, granted the application for leave to appeal, held that the contract required the plaintiff to make the disputed payments to the relevant authorities and that the defendants were not entitled to terminate the contract as at 25 August 2015.[11] Orders were made by the Court of Appeal on 31 January 2017.[12]
[11]Bisognin v Hera Project Pty Ltd [2016] VSCA 322 at [102]-[103].
[12]Bisognin v Hera Project Pty Ltd [2017] VSCA 7.
On 10 February 2017, the defendants issued a summons in this proceeding seeking to discharge the orders made by Macaulay J restraining them from terminating the contract. That summons came on before Riordan J on 24 February 2017 at a directions hearing where, rather than determining the application on that day, Riordan J set the proceeding down for trial on an expedited basis, with the trial fixed for 27 March 2017 on an estimate of five days. Exhibit ‘LAW-1’ to the Warren Affidavit is a copy of the transcript from 24 February 2017, and shows that this arrangement was concurred with by the parties. Discussions between the parties then ensured regarding timetabling for the various steps required to ensure the proceeding was ready for trial, and those orders were ultimately made, by consent, on 8 March 2017.
Consideration
Is the jurisdiction enlivened?
The defendants point to the following matters in contending that there is reason to believe that the plaintiff will be unable to pay their costs of the proceeding if it is unsuccessful:
(a) there is no evidence proving the plaintiff has any assets other than paid up capital of $120.00 and its claimed interest in the contract of sale;
(b) the defendants have raised the financial capacity of the plaintiff to perform its obligations under the contract of sale on numerous occasions;
(c) the father-in-law of the director of the plaintiff and the plaintiff have been involved in other court proceedings, and the father-in-law has been the principal witness for the plaintiff. His residential property is the subject of a warrant of possession issued by the ANZ bank;
(d) the sole shareholder of the plaintiff is Kaz Nominees Pty Ltd, whose sole director, shareholder and secretary is also the director of the plaintiff;
(e) a search of the Personal Properties Security Register pertaining to the plaintiff reveals that the plaintiff has granted a security interest in all present and after-acquired property, which is directed towards its interest in the subject land; and
(f) the defendants are concerned that the plaintiff has no capacity to meet the costs orders made against it in the Court of Appeal on 31 January 2017 (being the costs of the earlier proceeding before Sloss J and the costs of the defendants’ appeal).
In response, the plaintiff says:
(a) it has a valuable asset, being a contract to purchase the land for $3.6m against a formal valuation of $7m and which the plaintiff estimates it could on-sell for a price in the vicinity of $9m. It also has the right to receive refunds of bonds it has paid to the referral authorities to enable the plan of subdivision to be registered, totalling approximately $770,000 (‘Bond Refund’);
(b) the ANZ does not currently require possession of the father-in-law’s residential property and discussion are well advanced for the pay-out or assignment of the relevant mortgage; and
(c) the Bond Refund is more than sufficient to meet any existing costs orders and security for costs sought.
In considering these matters, in my view the value of the plaintiff’s claimed interest in the contract of sale (leaving aside for a moment any Bond Refund, considered in the next paragraph) should not be taken into account. Whether that interest has any value to the plaintiff (which could be employed to meet the defendants’ costs) is a matter which will flow from the ultimate outcome of this proceeding. If the plaintiff is unsuccessful, at this point it is difficult to see how it would be able to realise that value in order to meet the defendants’ costs. Presumably, the finance which it has obtained to settle the contract is unlikely to be available unless settlement on that contract occurs. Therefore, the plaintiff’s interest in the contract of sale is not an asset which should be taken into consideration when determining whether the plaintiff will be able to meet the defendants’ costs, should it be unsuccessful.
On the evidence, it is not entirely clear whether the $770,000 already paid by the plaintiff to the referral authorities would be refunded to the plaintiff. Clearly, if the subdivision proceeds and the plaintiff completes the contract of sale, it would then have the valuable asset referred to in paragraph 16 above. However, if the subdivision proceeds in circumstances where the contract of sale has been terminated or if the subdivision does not proceed, then different scenarios could arise. It may be that the plaintiff will be entitled to a refund or the defendants may receive, as the plaintiff puts it, a windfall gain (for example, by obtaining the benefit of the subdivision while retaining the subject land or by receiving a refund). The fate of a refund of this $770,000 was extensively canvassed during argument and the parties do not appear to have reached a consensus as to how it would be dealt with. Given that this may be a point of dispute in the future, I express no view as to the likely outcome regarding any rights in relation to this refund.
On balance, while I have had regard to the plaintiff’s position in relation to the Bond Refund for the purposes of considering its financial position, there is insufficient certainty to enable the Court to regard that refund as an asset in the plaintiff’s hand. Rather, the evidence points the other way: the plaintiff has borrowed the funds for these bonds from its lender and it has assigned its rights or interest in a Bond Refund to the lender. The defendants submit that this means the possibility of a refund is not an asset of the plaintiff when assessing its financial position. That submission is accepted.
Other than giving detailed evidence about loans entered into for the purchase of the defendants’ land (it has unconditional finance in place to settle the contract) and the matters described above, the plaintiff has not provided any evidence to deal with the plaintiff’s contention that its only assets are $120.00 in paid up capital and its interests in the contract of sale. Further, the plaintiff has stated that it believes its chances of obtaining funding specifically to meet an order for security for costs are very poor, and that the defendants have caused the impecuniosity of which they complain. More will be said about the cause of impecuniosity later, but for these purposes the plaintiff’s own argument points to it being impecunious.
Neither party developed their submissions on the matters raised by the defendants and summarised in paragraph 14(c) and (d) above. The defendants’ counsel stated in submissions that the amount, if any, subject to the security interest referred to in paragraph 14(e) above was not known to the defendants and there is no material before the Court in that regard. The plaintiff made no submissions regarding this point.
Having regard to all of these matters, the jurisdiction to order security for costs has been enlivened.
The jurisdiction having been enlivened, should security for costs be granted?
Prospects of success
Given the lengthy history of litigation connected with the subject matter of this proceeding it is unnecessary for the prospects of success to be considered in any detail. It is sufficient that, as is the case here, the claim is prima facie regular on its face and discloses a cause of action, and the Court will proceed on the basis that the claim is bona fide with reasonable prospects of success.[13] In addition, the fact that this proceeding is now fixed for trial commencing on 27 March 2017 makes it undesirable that too much be said at this point about the prospects for success. I have assessed this factor neutrally.
[13]KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189, 197.
Delay in making the application for security for costs
One of the main factors for consideration here is the defendants’ delay in making the application for security for costs: the summons was filed on 8 March 2017, 12 days after the hearing at which it was determined that the trial would commence on 27 March 2017 and 19 days before that scheduled commencement. This proceeding was commenced on 26 August 2016, there were contested interlocutory hearings on 30 August and 13 September 2016, a defence was filed on 24 November 2016, and a further contested interlocutory application was listed for 24 February 2017.
I do not accept the defendants’ position, as set out in paragraph 12 of the Grundy Affidavit, that ‘in practical terms the proceeding had not advanced beyond its commencement until the hearing’ on 24 February 2017. While it is the case that a number of interlocutory steps will occur between 8 and 27 March, it is also the case as Mr Warren deposes[14] that across the second and third proceedings, a great deal of the evidence and documents have already been exchanged by the parties.
[14]Warren Affidavit paragraphs [77]-[80].
The defendants also submitted that after the initial hearings in August and September 2016 and the orders made on those occasions, nothing happened in this proceeding while the parties awaited the outcome of the Court of Appeal hearing in the second proceeding and until they issued their summons on 10 February 2017 seeking a discharge of the injunctions. The defendants concede that there was no agreement with the plaintiff that this proceeding would be ‘put on hold’.
The plaintiff submits that the critical focus of the enquiry when it comes to delay is the delay between the facts on which the defendants rely coming to their knowledge and the making of their application. That is apparent from the authorities referred to in paragraph 6(f) above.
Here, the defendants have (on their own case) been concerned for some time about the plaintiff’s financial position. During the course of the hearing before Macaulay J on 13 September 2016, the defendants challenged the adequacy of the plaintiff’s undertaking as to damages in respect of the interim injunction and argued that security for the undertaking should be given, providing affidavit material and submissions in that regard. His Honour declined to make any changes in respect of the undertaking. The plaintiff submits, and I accept, that the defendants were armed with the knowledge on which they now rely back when this proceeding commenced, and likely earlier.
All that changed between August-September 2016 and now in the relevant sense is that on 24 February 2017 this proceeding was listed for an expedited trial. One does not wait until the bulk of the pre-trial preparation is to be done or for the proceeding to be fixed for trial to make an application for security for costs. There has been no adequate explanation from the defendants as to why they did not apply for security for their costs promptly, and at least once the injunctions had been dealt with.
The evidence does not disclose any request by the defendants for security for their costs prior to a letter sent by their solicitors on 6 March 2017 to the plaintiff’s solicitors.[15] On the same day, the defendants commenced preparation of their application for security for costs.[16] In argument, the defendants’ counsel conceded that 6 March 2017 was the first time security for costs had been raised with the plaintiff.
[15]Exhibit ‘TFG-6’ to the Grundy Affidavit.
[16]The summons is dated 7 March 2017 and was filed on 8 March 2017, after an Associate Judges’ Court 2 Application form was submitted to the Registry of this Court on 6 March 2017. The Grundy Affidavit was sworn on 7 March 2017.
The issue of security for the defendants’ costs was not raised on 24 February 2017 during the hearing before Riordan J. Given that a timetable for readying the proceeding for trial was discussed on that day, with further discussions between the parties culminating in consent orders being made on 8 March 2017 for the steps which needed to be taken, it is surprising that the defendants did not raise the question of security for their costs on these occasions. The defendants’ counsel submitted that they had not expected to receive an early trial date with an expedited timetable and that the application was made in light of that having occurred and after obtaining instructions from the defendants. That may well be the case, but it does not explain why it was not applied for much earlier, or at least foreshadowed when before Riordan J on 24 February 2017.
The defendants elected not to seek security for their costs at an early stage of the proceeding, instead waiting until 19 days before the start of the trial to file their application. They had not given the plaintiff any prior warning of their intention to make an application. I do not regard the letter from the defendants’ solicitor on 6 March 2017 as prior warning in this context. In Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd,[17] Justice Lehane considered a number of authorities in relation to the issue of delay and concluded that in cases where security had been ordered despite delay, there was present at least one of two factors, and usually both, being at least some forewarning of the application for security or the trial not being immediately imminent. Both those factors are present here.
[17](1995) 19 ACSR 68.
The defendants submit that there is little prejudice to the plaintiff in the delay, since the majority of the work which the plaintiff has done (said to be the affidavit material relied on for the application for interim injunctions) was done at or around the same time as the commencement of the proceeding. However, that does not take account of the work which the plaintiff says it has been doing since 24 February to prepare evidence and complete further steps for the expedited hearing.
Delay in the context of the imminence of the trial is the key element here. The plaintiff relies on Derham AsJ in Matthews v SPI Electricity Pt Ltd & Ors (No 9), referring to Trility, where it was said that in ‘the case of applications shortly before the commencement of the trial it has been said that “the closer is the proximity of the hearing of the substantive proceeding to the time at which any application for security for costs is made, the more weight is likely to be given to the delay factor”.’[18]
[18]Matthews v SPI Electricity Pt Ltd & Ors (No 9) [2013] VSC 671.
In some cases, rather than telling against an order for security at all, delay may result in security being ordered only for future costs,[19] noting that mostly it is security for future costs that is being sought here. I have carefully considered whether that should be ordered in this case, however, for the reasons set out above, this is not one of those cases.
[19]Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114.
Given the delay in making the application and the circumstances in which the proceeding came to be fixed for trial, together with the imminence of that trial, this is not a case where it would be appropriate to order a stay of the proceeding until the security (if it were to be ordered) was paid. The proceeding having been fixed for trial on 27 March 2017 and the parties having agreed to a timetable for the remaining pre-trial steps and then being well into carrying out those steps, it would not be in the interests of the administration of justice for there to be a stay ordered now, either until security is paid or if it is not paid by a specified date. The defendants’ counsel indicated during argument that rather than an immediate stay (as sought in their summons), it would be more appropriate to order a stay if security was not paid by the specified date. However, this does not sufficiently ameliorate the potential injustice. The solution proposed by the defendants, of requiring security to be paid within seven days (or shorter) rather than the 14 days specified in the summons (since that would take it past the commencement of the trial), is also insufficient to do justice between the parties, since it would give the plaintiff a very short period of time in which to come up with the security. Further, an order without a stay would, in reality, be no order at all.[20]
[20]Derham AsJ in Matthews v SPI Electricity Pt Ltd & Ors (No 9) [2013] VSC 671 at [116], referring to Toohey J in James v Australian and New Zealand Banking Group Ltd (1985) 9 FCR 422.
It has been said that ‘security for costs is not a card that a defendant can keep up its sleeve and play at its convenience’.[21] The defendants’ delay in all the circumstances of this case is a significant factor against granting an order for security for the defendants’ costs.
[21]Newnes JA in Christou v Stanton Partners Australasia Pty Ltd [2011] WASC 176 at [20], referred to in Trility [2013] VSC 577 (Croft J) at [56].
Stultification
Here, the plaintiff does not say, in so many words, that it cannot meet an order for security for costs. Mr Warren deposes that a ‘security for costs order of any sort is likely to stultify this proceeding’, relying on instructions that the chances of the plaintiff’s financier being prepared to lend the plaintiff funds to meet an order for security are ‘very poor’.
No evidence was given by the plaintiff as to whether those standing behind the plaintiff and who stand to benefit from this litigation are also without the means of satisfying an order for security for costs. The plaintiff’s counsel indicated that he had no instructions beyond what was in the Warren Affidavit in regard to the stultification argument.
As noted above, the plaintiff bears the onus of establishing that it will be stultified in pursuing its claim if security was to be ordered. Based on the evidence provided, I am not persuaded that the plaintiff’s claim will be stultified if security is ordered. However, in all the circumstances (particularly the timing of this application), I consider that there is a risk of stultification in this case, which is prejudicial to the plaintiff in the context of the imminence of the trial.
Whether the plaintiff’s impecuniosity was caused by the defendants
The plaintiff submits that the defendants caused the impecuniosity upon which they now rely to justify an order for security for their costs. The plaintiff bears the burden of establishing this on the basis of admissible evidence and there must be a solid foundation for that conclusion.[22]
[22]Colmax Glass Pty Ltd v Polytrade Pty Ltd [2013] VSC 311.
Here, the plaintiff says that the defendants’ conduct has deprived the plaintiff of the opportunity to settle the contract of sale, which it describes as a valuable commercial activity.
However, there is insufficient evidence from the plaintiff to establish that its impecuniosity was caused by the defendants. I do not attribute any weight to this factor in circumstances where the plaintiff has not disputed the defendants’ submission that it is effectively a special purpose vehicle created for the purposes of this purchase and development, and where its sole tangible asset apart from the contract (which is the very subject matter of the litigation) has only ever been $120.00 of paid-up capital.
Whether the plaintiff’s claim is defensive in nature
The plaintiff submits that its claim in this proceeding is defensive in nature. At the time the plaintiff issued its claim, it had the benefit of the decision of Sloss J in the second proceeding and it was clearly at risk of the defendants terminating the contract of sale within a matter of days. There is some force to the plaintiff’s argument that it issued this proceeding in a defensive capacity to prevent the defendants from terminating the contract, particularly when regard is had to all of the circumstances, including the second proceeding (which has not yet concluded, in light of the defendants’ application for special leave to appeal the decision of the Court of Appeal). There is less force in the plaintiff’s argument that the defendants’ summons of 10 February 2017 seeking to discharge the injunction preventing the termination places them in a position analogous to a counter-claimant: since that application is now to be dealt with at the trial of the proceeding, the ultimate fate of the injunction will be determined at the same time. On balance, while this is a factor against granting security, I do not attribute much weight to it in circumstances where events subsequent to the commencement of the proceeding may affect the ‘defensive’ characterisation of the plaintiff’s claim.
Amount of security sought by the defendants
The defendants estimate their costs of the proceeding at $250,000. This is based on an estimate from Mr Grundy, an experienced litigation solicitor. He estimates the defendants’ costs as follows:[23]
[23]Grundy Affidavit, paragraphs [19]-[20].
(a) barristers’ fees for 10 days of pre-trial preparation: $130,000;
(b) barristers’ fees for a 5 day hearing: $65,000;
(c) attendances and correspondences with plaintiff’s solicitors: $10,000;
(d) attendances and correspondence with the defendants: $5,000;
(e) solicitors’ pre-trial preparation: $25,000;
(f) solicitor instructing at trial: $15,000; and
(g) other disbursements including transcripts: $10,000.
The plaintiff does not accept the defendants’ estimated costs. In particular, it says that:[24]
[24]Warren Affidavit, paragraphs [83]-[94].
(a) the preparation claimed is excessive, with three days for each of the defendants’ two counsel sufficient and the preparation by the defendants’ solicitors is likely to be minimal;
(b) apart from transcript, which it estimates at $700 per day, the ‘other disbursements’ are not identified;
(c) the costs claimed are on an indemnity basis, rather than a standard basis;
(d) the daily fees for counsel of a combined rate of $13,000 per day appear excessive; and
(e) the trial is unlikely to run for five days.
While the amount of security to be ordered is in the discretion of the Court and is an amount that the Court thinks just having regard to all the circumstances of the case,[25] it is for the defendant to put before the Court material which will enable the Court to make an estimate of the costs of the litigation.[26]
[25]Allstate Life Insurance Co v ANZ Banking Group Ltd (No 19) (1995) 134 ALR 187 at 197.
[26]T Sloyan & Sons (Builders) Ltd v Bros of Christian Instruction [1974] 3 All ER 715; Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 2 All ER 368.
When considering the amount of security, it is customary for the costs to be estimated on a standard basis and for the defendants to provide their estimate on this basis.[27] Mr Grundy does not state that his estimate is provided on a standard basis and it was confirmed by the defendants’ counsel that it was estimated on an indemnity basis.
[27]Quadrant Constructions Pty Ltd (in liq) v Morgan Smith Barney Australia Pty Ltd [2009] VSC 455.
Mr Grundy does not provide any further breakdown of the estimated costs, in terms of the hours to be spent or the tasks undertaken by the defendants’ solicitors (apart from instructing at trial). Therefore, there is little material upon which to base an assessment of the reasonableness of the claimed costs.
The defendants’ counsel submits that since the amount to be ordered is in the discretion of the Court, I should just discount the claimed amount of $250,000 by around one-third, where that is said to be a typical discount once costs are taxed. Having chosen to make their application at such a late stage, the defendants rely on a timing of their own choosing to submit that there was not time and that it was not necessary to have a report from a costs consultant as to the likely costs on a standard basis. That outcome could have been avoided by an earlier, more timely application. At the very least, the defendants could have assisted the Court by taking the more orthodox approach of delineating the work required with far more granularity and precision, and estimating those costs on a standard basis. Therefore, the lack of adequate material from the defendants on the amount of security is a factor weighing against granting security in all the circumstances of this case.
Conclusion
Balancing the factors as outlined above, the balance is weighed in favour of the plaintiff and against granting an order for security for the defendants’ costs. The defendants have not discharged the onus they bear in this application.
The defendants’ summons filed 8 March 2017 will therefore be dismissed.
Although it is not necessary in light of the outcome, for the sake of completeness I will indicate that had I been minded to grant security, the evidence provided by the defendants in respect of their likely costs does not readily enable the Court to determine an appropriate amount of security to order. I would therefore have heavily discounted the amount sought and have ordered it only to the first day of trial, it then being a matter for the trial judge as to security for subsequent days.
The defendants submitted that if their application was unsuccessful then the plaintiff’s costs of the application should be costs in the cause. The plaintiff submitted that if they were successful in resisting an order for security, then the defendants should pay its costs of the application.
Given the outcome of the application, I see no reason to depart from the usual approach that costs follow the event. The defendants should pay the plaintiff’s costs of and incidental to the application.
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