Marley & Ormonde & Ors (No 2)

This matter concerned an application by the plaintiffs, Marley and Ormonde, for an order that the defendants, Mr. and Mrs. Smith, provide security for costs. The dispute arose from proceedings initiated by the plaintiffs against the defendants concerning a property dispute. The application was heard by McClelland DCJ in the District Court of New South Wales.

The primary legal issue before the court was whether the plaintiffs had established grounds for an order requiring the defendants to provide security for costs. This involved an assessment of the plaintiffs' financial position and the likelihood of them being able to meet any costs order that might be made against them at the conclusion of the substantive proceedings.

McClelland DCJ considered the relevant legislative provisions and case law concerning security for costs. His Honour noted that the court has a broad discretion to order security for costs where it appears just to do so. The court must weigh the potential prejudice to the defendant if security is not ordered against the potential prejudice to the plaintiff if security is ordered. In this instance, the court found that the plaintiffs had failed to demonstrate a sufficient risk that they would be unable to pay the defendants' costs if unsuccessful.

Consequently, the application for security for costs was dismissed.