Hunter Business Finance Pty Ltd v Australian Commercial and Equipment Finance Pty Ltd

The appeal concerned an application for security for costs brought by the respondents, Australian Commercial and Equipment Finance Pty Ltd, against the appellant, Hunter Business Finance Pty Ltd. The dispute arose in the context of an appeal where the respondents sought an order that the appellant provide security for their costs, pursuant to section 1335 of the *Corporations Act 2001* (Cth). The application was heard by Giles JA in the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether there was credible testimony establishing a reason to believe that the appellant would be unable to pay the respondents' costs if the appeal were unsuccessful. The Court was also required to consider the appropriate amount of security to be ordered, if any.

Giles JA found that the evidence presented by the respondents constituted credible testimony that there was reason to believe the appellant might be unable to pay their costs. In reaching this conclusion, the Court considered the financial position of the appellant. Having determined that security for costs was warranted, the Court then considered the quantum of that security. The Court found no reason to order security in a figure lower than that sought by the respondents.

Consequently, the Court ordered that the appellant pay $100,000 into court or provide security to the satisfaction of the respondents within 21 days. The Court further ordered that if the security was not provided within that timeframe, the appeal would be stayed. The appellant was also ordered to pay the respondents' costs of the application for security.