Nucross (WA) Pty Ltd (in liq) v Ultraplast Pty Ltd - [2017] WASC 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NUCROSS (WA) PTY LTD (in liq) -v- ULTRAPLAST PTY LTD [2017] WASC 1

CORAM: ACTING MASTER STRK

HEARD: 14 NOVEMBER 2016

DELIVERED : 9 JANUARY 2017

FILE NO/S: CIV 1621 of 2015

BETWEEN: NUCROSS (WA) PTY LTD (in liq)
Plaintiff
AND
ULTRAPLAST PTY LTD
First Defendant
CALEB MORREN
Second Defendant
STOCK BRANDS CO PTY LTD
Third Defendant
ACE PLASTICS PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Application for security for costs - Where plaintiff company in liquidation - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 1335

Result:

Order that security in the sum of $90,000 be paid into court

Category: B

Representation:

Counsel:

Plaintiff:     Mr A C MacIntosh
First Defendant             :     Mr J Garas
Second Defendant         :     Mr J Garas
Third Defendant           :     Mr H M O'Sullivan
Fourth Defendant          :     Mr H M O'Sullivan

Solicitors:

Plaintiff:     Ilberys Lawyers
First Defendant             :     HBA Legal
Second Defendant         :     HBA Legal
Third Defendant           :     SRB Legal
Fourth Defendant          :     SRB Legal

Case(s) referred to in judgment(s):

Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171
Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2016] WASC 404
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118
Four Vanguard Servicos E Navagacao Lda v ENI Australia Ltd [2014] WASC 473
Global Finance Group Pty Ltd (in liq) v Marsden Partners (A Firm) [2004] WASC 52
Sugarloaf Hill Nominees Pty Ltd As Trustee For The Richard And Anna Trust v Rewards Projects Ltd [2011] WASC 19
TSDack Pty Ltd v Australian Water Holdings Pty Ltd [2015] FCA 931; (2015) 108 ACSR 379
Unified Pty Ltd v The Cancer Council Western Australia Inc [No 3] [2011] WASC 161
Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57

ACTING MASTER STRK: This is an application jointly made by the first and second defendants (the Acu‑tech Parties), and the third and fourth defendants (the Stock Brand parties), for security for costs pursuant to s 1335(1) of the Corporations Act 2001 (Cth) (the Application).
The Acu‑tech Parties and the Stock Brand Parties each seek security for costs, up to and including mediation in the amount of $60,000 each by way of payment into court, with liberty to apply to 'top up' security.
For the reasons set out below, I am satisfied that an order for security for costs should be made.

Factual background and the basis for the Application

In support of the Application, the defendants relied on the affidavit of Melissa Cheryl Hurt (a solicitor for the Acu‑tech Parties) sworn on 1 July 2016; the affidavit of Hugh Mark O'Sullivan (a solicitor for the Stock Brand Parties) sworn 19 July 2016; and the affidavit of Caleb John Morren (the second defendant and the Technical Sales and Marketing Manager of the first defendant) affirmed on 28 October 2016.
The plaintiff (Nucross) relied on the affidavit of Roy Keith Perkins (director and company secretary of Nucross) sworn on 3 October 2016; and the affidavit of Ross Stephen Thomson (the liquidator of Nucross) sworn 14 October 2016. The affidavit of Mr Perkins was the subject of objections made by the defendants, which objections were summarised in notice of objections filed on behalf of the defendants on 28 October 2016.
After the hearing of the Application, the solicitors for Nucross sent to my Associate two documents. The first was a copy of a circular to creditors of Nucross dated 30 August 2016 with six enclosures which included a form by which an expression of interest in litigation funding might be made. The second was a complete copy of the minutes of meeting of the creditors of Nucross on 15 September 2016. My Associate was informed that the documents were produced without objection from the defendants and with no further submissions from either party.

Status of the proceedings

The proceedings were commenced by Nucross by a writ dated 30 April 2015, against the first, second and third defendants.
It appears that before the writ had been served on any of the defendants, Nucross applied by chamber summons dated 15 January 2016 (among other things) to join Ace Plastics Pty Ltd (Ace Plastics) as the fourth defendant to the proceedings. On 3 March 2016, Nucross secured orders for leave to file and serve an amended writ of summons, which included Ace Plastics as the fourth defendant.
The amended writ dated 3 March 2016 was served on each of the Acu‑tech Parties on around 18 April 2016, and it is asserted on behalf of the Acu‑tech Parties that the amended writ was the first document in the action served on them (originating or otherwise).[1] An appearance was filed on behalf of the Acu‑tech Parties on 19 April 2016; on behalf of Stock Brands Co Pty Ltd (the third defendant) on 29 April 2016; and by the Ace Plastics Pty Ltd (the fourth defendant) on 31 May 2016.
[1] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016 [5].
The first status conference occurred on 19 May 2016. A direction was made for the filing and service of a statement of claim, but not defences as a security for costs application was then foreshadowed.[2]
[2] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016 [8].
The statement of claim was filed and served on 2 June 2016 and on 17 June 2016, defences were filed on behalf of the Stock Brand Parties. At the second status conference on 23 June 2016, a direction was made that the Acu‑tech Parties file and serve their defences by 30 June 2016 and that the defendants file and serve any application for security for costs by 1 July 2016. The Acu‑tech Parties served their defence by 30 June 2016, and the security for costs application was filed on behalf of all defendants on 1 July 2016.

Nature of the proceedings

The nature of the proceedings is conveniently summarised in the defendants' submissions dated 1 July 2016.
Nucross alleges three causes of action against the first defendant (Acu‑tech), and one cause of action against the second defendant (Mr Morren). As against Acu‑tech, the alleged claims are: (1) breach of an implied warranty as to fitness for purpose of six 'tapping bands' allegedly purchased from Acu‑tech; (2) common law misrepresentation in relation to the suitability of the tapping bands; and (3) negligence in relation to training on the use of 'electrofusion welding products' allegedly conducted by Mr Morren on behalf of Acu‑tech. The claim against Mr Morren is in negligence, and arises from the same facts the subject of the third cause of action against Acu‑tech.
Nucross also alleges that the Stock Brand Parties were responsible for manufacturing the allegedly defective 'tapping band' and asserts a claim against them on the basis that they were negligent in relation to the manufacture of the tapping bands:
15.Tapping bands, as the name implies, are products that are clamped around pipelines to 'tap' into and divert the water stream on the pipeline.
16.Electrofusion welding is a method of joining plastic pipes, using special fittings and heating elements which are used to 'weld' the joint together.
17.As appears from the statement of claim, Nucross alleges:
(a)in late 2008, Nucross was engaged by a third party, Cimeco (Cimeco), to provide hydraulic and plumbing services at the Collie aged care facility in Collie, Western Australia;
(b)in May 2009, Nucross was engaged by Cimeco to supply and install a fire main and portable water main at the Pluto LNG project in Dampier, Western Australia;
(c)in relation to claims relating to tapping bands;
(i)Acu‑tech made representations to Nucross in around May 2009 regarding the suitability of the tapping bands [11];
(ii)induced by those representations, Nucross purchased 6 tapping bands from Acu‑tech between around 19 May 2009 and 2 June 2009 [12];
(iii)the tapping bands were installed at the Pluto LNG project shortly after they were purchased [15];
(iv)leaks and damage first arose in relation to the Pluto LNG project in around late June 2010 [20];
(v)the tapping bands were not fit for purpose [33];
(vi)the Stock Brand Parties were negligent in manufacturing the tapping bands [42];
(d)in relation to claims relating to 'electrofusion welding' that:
(i)Acu-tech, by Morren, made representations to Nucross in around late 2007 regarding the use of electrofusion welding products and training on the use of those products [16];
(ii)Nucross employees attended training conducted by the Acu-tech Parties in around early 2008 [17];
(iii)Nucross employees installed electrofusion welding products and carried out electrofusion welding at the Pluto LNG project and the Collie aged care facility, in 2008 and 2009 in accordance with the training they allegedly received [19];
(iv)leaks and damage first arose in relation to the Collie Aged Care Facility in around September 2010 [28];
(v)the training was negligent [39];
(e)in consequence, Nucross incurred costs and expenses in attending to repairs, that is [sic] has suffered a loss of profit and has a potential liability to a Cimeco.
In his report to creditors dated 19 April 2016, Mr Thomson (in his capacity as liquidator of Nucross) makes the following statements, which provides further context to these proceedings:
The matter was further complicated by Nucross having been provided with the wrong type of insurance. The policy held by the company, as recommended by their broker, excluded the type of projects they were working on. The exclusion relates to an interpretation of words, which the broker should have understood. Because of the wrong policy, Nucross was unable to claim against its policy for any losses incurred. The legal action against the broker, cannot be commenced until an actual loss has been established, and that 'loss' stems from the legal action involving the supplier …
The legal action has been threatening for several years, but none of the parties involved have sought to force a resolution. A successful recovery on this litigation would potentially result in Nucross gaining sufficient funds to pay out all creditors in full.
...
... a preference recovery obtained against the ATO … has now placed me in funds and I have now taken steps to advance the litigation.[3]
[3] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016, 'MCH-6', page 51.
The minutes of meeting of creditors of Nucross on 15 September 2016 records as follows:
Mr Thomson advised that the actual events creating the litigation had occurred many years ago, and that the Court Application had been made to ensure that the Statute of Limitations did not prevent this matter from progressing. It appeared that all parties involved had created a 'Mexican standoff', with no one party wanting to pursue the matter. Nucross because it didn't have the funds, Ultraplast Pty Ltd because it was the defendant and had no motive to advance the matter, and Cimeco (the principal contractor) - reasons unknown, but possible because of potential breaches in its contractual obligations and also funding issues.[4]

The plaintiff's financial circumstances

[4] Affidavit of Caleb John Morren affirmed 28 October 2016, 'CJM-1', pages 5 ‑ 6.

On 5 June 2013, Mr Ross Thomson was appointed administrator of Nucross pursuant to s 436A of the Corporations Act. At the second meeting of creditors, it was resolved that Nucross enter into a deed of company arrangement (the DOCA) and it did so on 30 July 2013.
The DOCA failed and Mr Ross Thomson was appointed liquidator of Nucross on 28 March 2014.
Nucross is in liquidation and is insolvent.
According to its accounts dated 18 April 2016, Nucross has an estimated 190 creditors. $1,639,923.98 is estimated to be owed to unsecured creditors and $102,140.20 is estimated to be owed to priority creditors.[5]
[5] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016, 'MCH-7', page 58.
The sale of plant and equipment realised $32,335 and there is not expected to be any further plant and equipment realisations.[6]
[6] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016, 'MCH-6', page 50 (being the Liquidator's Report to Creditors dated 19 April 2016).
The cash at bank as at 29 February 2016 was $220,898.57 and there were unrepresented cheques to the value of $6,326.63 (a total of $227,225.20).[7]
[7] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016 [18], 'MCH-7', page 59; 'MCH-6', page 49.
At the hearing of the Application, counsel for Nucross stated that the cash at bank as at 14 November 2016 was $135,048.98, as certain expenses had been paid by the liquidator. Particulars of the expenses paid were not provided but it appears that the $92,176.22 withdrawn from the cash at bank was not used to pay priority creditors of Nucross.

The funding of these proceedings

As liquidator, Mr Ross Thomson commenced investigations into payments made by it to the Australian Tax Office. Mr Thomson recovered $234,193 from the ATO, on the basis that the amount constituted a preference payment.
In his report to creditors dated 19 April 2016 (the relevant extract is reproduced above), Mr Thomson stated that he intends to use the moneys recovered from the ATO to fund legal actions, being the actions the subject of these proceedings.[8]
[8] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016 [17], 'MCH-6', pages 50 ‑ 51.
At par 19 of his affidavit of 14 October 2016, Mr Thomson states as follows.
The outcome of the Creditors Meeting was that the creditors resolved to continue the litigation and that a Committee of Inspection be formed. However none of the creditors were prepared to fund the litigation. Further if the Court was to order security for costs none of the creditors are willing to contribute to that payment.

Security for costs

The court has an inherent and statutory jurisdiction to make an order requiring a plaintiff to provide security for costs. In bringing the Application, the defendants rely on s 1335(1) of the Corporations Act, which provides:
Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction to the matter may, if it appears by credible testimony that there is a reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.
The precondition for the exercise of the court's jurisdiction under s 1335(1), sometimes described as the 'threshold jurisdictional question', is whether it appears by credible testimony that there is reason to believe that the plaintiff corporation will be unable to pay the defendant's costs. If that condition is satisfied, the court has jurisdiction to make an order for security for costs, and the question is whether it should exercise its discretion to make such an order.[9]
[9] FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241; Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2016] WASC 404 [27].
Once the court has jurisdiction under s 1335(1), there is an unlimited discretion that is to be exercised considering all of the circumstances of the case.[10] Essentially, the section requires a balance to be struck between protecting the defendant from the possible consequences of being sued by an impecunious corporation with limited liability and avoiding injustice to the corporation by unnecessarily prejudicing it in the conduct of litigation.[11]
[10] Unified Pty Ltd v The Cancer Council Western Australia Inc [No 3] [2011] WASC 161 [10].
[11] Sugarloaf Hill Nominees Pty Ltd As Trustee For The Richard And Anna Trust v Rewards Projects Ltd [2011] WASC 19 [31]; Unified Pty Ltd v The Cancer Council Western Australia Inc [10].
Various factors may be relevant to that exercise of discretion. They may include (but will not be limited to) the strength and bona fides of the plaintiff's case; the likelihood of the plaintiff being unable to pay the defendant's costs; whether the plaintiff's impecuniosity was caused by the defendant's conduct which is the subject of the claim; whether the application for security is oppressive; whether the award for security would deny an impecunious plaintiff a right to litigate; whether there are persons standing behind the plaintiff who are likely to benefit from the litigation; whether the persons standing behind the plaintiff have offered any security or personal undertaking; whether the plaintiff is in substance a plaintiff or whether the proceedings are defensive in the sense of directly resisting proceedings already brought or seeking to halt the defendant's self-help procedures; whether the application for security has been brought promptly; whether the defendant has any rights which it can exercise against assets of the plaintiff to satisfy an order for costs in its favour; and any factors relating to public interest.[12]

Threshold jurisdiction question

[12] Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57 [6]; Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [28].

Nucross asserts that the threshold jurisdiction question is not met in this case because there is adequate moneys in the 'Litigation Fund' available to cover the defendants' costs up to and including the mediation conference. Nucross says that the court has no discretion to make an order for security and the application should be dismissed.
The 'Litigation Fund' appears to be Nucross' cash at bank. As at the hearing of the Application, the 'Litigation Fund' had been reduced to $135,048.98.
Having regard to the evidence filed and the submissions made by counsel during the course of the hearing of the Application and adopting a practical, commonsense approach to the examination of Nucross' financial affairs, I find that there is credible testimony that there is a reason to believe that Nucross will be unable to pay the defendants' costs if successful in their defence, and as such, the defendants have satisfied the threshold test for jurisdiction under s 1335(1).
The following factors particularly support that conclusion.
First, as at the hearing of the Application, the 'Litigation Fund' had been reduced to $135,048.98. There appears to be no other moneys or property that might be realised by the liquidator to add to those funds.
Secondly, there are priority creditors owed an estimated $102,140.20. The priority creditors will be paid from the cash at bank in priority to an unsecured cost order of the defendants.
Thirdly, the 'Litigation Fund' is intended to be used to pay its lawyers in prosecuting Nucross' claim. There are no additional funds available to pay an adverse cost order. The minutes of meeting of creditors of Nucross on 15 September 2016 records as follows:
Mr Thomson advised that the issue of Security of Costs was very important. If funds held were applied to security of costs, it would deplete Nucross's capacity to actually pay the lawyers representing it.[13]

Discretion

[13] Affidavit of Caleb John Morren affirmed 28 October 2016, 'CJM-1', page 6.

I find that this is a case where it is appropriate to require the payment of security for costs. The following factors particularly support that conclusion.
First, I have taken into account the strength of Nucross' case.
In this regard, I note that it is not necessary nor is it appropriate that I attempt any detailed consideration of Nucross' case at this stage. Given the very limited evidence before the court as to the merits of the case, it is not possible to do so in any event.
Having carefully considered the pleadings filed and all of the evidence filed by on behalf of Nucross,[14] I find that there is a prima facie case - however, it has difficulties. The claims against the defendants reach as far back as 2007, including allegations of oral representations. The significant effluxion of time is a complicating factor - particularly as allegations of oral representations are made, and those allegations are disputed. Further, it appears that much will turn on expert evidence. Unless the parties are able to narrow the issues in dispute, any trial of the action will be lengthy.
[14] Including the evidence the subject of objection by the defendants.

Secondly, the inability of Nucross to pay the defendants' costs not only enlivens the jurisdiction to require security but is also a substantial factor in the decision whether to exercise it.[15] Having had regard to the evidence bearing on Nucross' financial position, I find that it is unlikely that Nucross will be able to pay the defendants' costs if it were unsuccessful in the proceedings.
[15] Sugarloaf Hill Nominees Pty Ltd As Trustee For The Richard And Anna Trust v Rewards Projects Ltd [36]; TSDack Pty Ltd v Australian Water Holdings Pty Ltd [2015] FCA 931; (2015) 108 ACSR 379 [35].
Thirdly, it is not possible to conclude on the evidence filed that Nucross' impecuniosity was caused by the defendants' conduct which is the subject of the claim.[16]
[16] The defendants objected to a large part of the affidavit of Roy Keith Perkins sworn on 3 October 2016. When considering whether or not it was possible to conclude on the evidence filed that Nucross' impecuniosity was caused by the defendants' conduct the subject of the claim, I had regard to all of the evidence filed on behalf of Nucross, including those parts of the affidavit of Mr Perkins the subject of the defendants' objection.
Fourthly, the application for security for costs is of itself not oppressive. Security is sought, at this stage, only for the first tranche of costs incurred up until mediation is held.
Fifthly, having regard to all of the circumstances, there was conferral prior to and no significant delay in making the Application. I also note that while the memorandum of conferral was filed some days after the Application, the conferral took place before the filing of the Application and the Application does not fail by reason of that delay.
Sixthly, there persons standing behind Nucross who are likely to benefit from this litigation, namely the creditors of Nucross. They have not offered any security or personal undertaking to be liable for the costs. Mr Thomson deposes that the outcome of the creditors meeting on 15 September 2016 'was that the creditors resolved to continue the litigation and that a Committee of inspection be formed. However, none of the creditors were prepared to fund the litigation. Further if the court was to order security for costs none of the creditors are willing to contribute to that payment'.[17]
[17] Affidavit of Ross Stephen Thomson sworn 14 October 2016 [19].
I have also had regard to whether an award of security would deny Nucross, an impecunious plaintiff, the right to litigate. Absent the offering of security or a personal undertaking from any of the creditors of Nucross, I note that these proceedings may be frustrated.
Despite this and having taken into account all of the circumstances, in particular the factors particularised above, I find that this is a case where it is appropriate to require the payment of security for costs.

Quantum

I now turn to the quantum of security which should be provided. In my view it is appropriate to proceed, as the defendants seek, to order security for the first tranche of the costs of the action up to the point of mediation. Further, in light of the matters in issue in the proceedings (as pleaded and as described in the papers filed for the purpose of the Application), it appears reasonable that experts be briefed and that expert evidence be prepared and exchanged prior to mediation.
If these proceedings are not able to be resolved by mediation, then the defendants will be at liberty to apply for further security for costs.
The task for the court in determining the quantum of the security for the costs of the first tranche of the action is to determine what amount would provide the defendants with an adequate security for their costs, if they were successful at trial.[18] The aim is not to provide the defendants with a complete indemnity for their costs.[19] Rather, the task for the court is to calculate the sum which it thinks just to order to be secured, having regard to a reasonable estimate of the likely taxable costs of the defendants in question.[20]
[18] Global Finance Group Pty Ltd (in liq) v Marsden Partners (A Firm) [2004] WASC 52 [71]; Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [45].
[19] Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171, 175; Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [45].
[20] Global Finance Group Pty Ltd (in liq) v Marsden Partners (A Firm) [53] ‑ [58]; Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [45].
The determination of the appropriate amount to be provided by way of security involves the exercise of the discretion by reference to matters of impression rather than mathematics.[21]
[21] Four Vanguard Servicos E Navagacao Lda v ENI Australia Ltd [2014] WASC 473 [4]; Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 [27].
The solicitors for the Acu‑tech Parties (HBA Legal) prepared a draft bill of costs, in which they estimate, by reference to the scale of costs, the costs that the Acu‑tech Parties are likely to incurred in defending this action up to and including any mediation, including obtaining expert evidence. The draft bill of costs does not expressly include counsel fees and therefore may not reflect the totality of the legal costs incurred by the Acu‑tech Parties. The total estimated cost is $76,567.[22]
[22] Affidavit of Melissa Cheryl Hurt sworn 1 July 2016 [19] ‑ [21], 'MCH-8'.
The Stock Brands Parties adopt the draft bill of costs prepared on behalf of the Acu‑tech Parties. Hugh Mark O'Sullivan, a partner of the firm SRB Legal which acts on behalf of the Stock Brands Parties, deposes to having carefully considered the draft bill of costs prepared by HBA Legal and to having concluded that similar amounts are likely to be incurred by the Stock Brands Parties in their defence of these proceedings.
By the Application, the Acu‑tech Parties and the Stock Brands parties each seek security of a lesser amount than the costs estimated, namely $60,000.
In response, Nucross' solicitors (Ilberys Lawyers Pty Ltd) prepared a draft bill of costs, which sets out Nucross' estimate of the costs of the Acu‑tech Parties up to mediation, which also includes the exchange of expert evidence. The total estimated cost is $13,299 (which if replicated for the Stock Brands Parties, means that the total estimated costs for all defendants would be $26,598).
Having reviewed the draft bills of costs prepared by HBA Legal and Ilberys Lawyers Pty Ltd; having made my own estimates of the likely costs of these proceedings up to an including mediation (including the exchange of expert evidence); and having estimated the costs likely to be recovered after taxation, I find that it is appropriate for Nucross to provide security for the defendants' costs of these proceedings by paying a total of $90,000 into court.

Determination

For the reasons set out above, I am satisfied that an order for security for costs should be made and the court will make the following orders:
(1)the plaintiff do pay into court $45,000 as security for the first and second defendants' costs of these proceedings up to and including mediation not later than 31 January 2017;
(2)in the event that the plaintiff does not pay $45,000 into court as security for the first and second defendants' costs by 31 January 2017, these proceedings as between the plaintiff and the first and second defendants will be stayed until further order;
(3)the plaintiff do pay into court $45,000 as security for the third and fourth defendants' costs of these proceedings up to and including mediation not later than 31 January 2017;
(4)in the event that the plaintiff does not pay $45,000 into court as security for the third and fourth defendants' costs by 31 January 2017, these proceedings as between the plaintiff and the third and fourth defendants will be stayed until further order;
(5)any party has liberty to apply in respect of these orders;
(6)without limiting order (5), the defendants have liberty to apply to increase the amount of security for their costs of the action; and
(7)the costs of the defendants' application for security for costs will be reserved.

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Citations

Nucross (WA) Pty Ltd (in liq) v Ultraplast Pty Ltd [2017] WASC 1

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

1

FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69

Construction Industries Australia Ltd (in liq) v WFI Insurance Ltd [2016] WASC 404

FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69