Pioneer Park Pty Ltd (in liq) v Australia and New Zealand Banking Group Ltd

Pioneer Park Pty Ltd (in liq) and others (the corporate Appellants) sought to appeal a decision concerning security for costs against Australia and New Zealand Banking Group Ltd (the Respondent). The dispute concerned the Respondent's application for security for costs of the appeal, which had been dismissed by a Registrar. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether section 1335 of the *Corporations Act 2001* (Cth) was subject to inconsistency with State law, the proper exercise of the court's discretion under section 1335 in circumstances of impecuniosity, and the court's power to review a Registrar's decision regarding security for costs. The court also considered whether an order for security would stifle the proceedings and the potential for oppression.

The Court of Appeal reasoned that the *Corporations Act* conferred a broad discretion on the court to order security for costs, which was not constrained by a requirement for "special circumstances" as might have been the case under previous State legislation. The court found that the Registrar had erred in dismissing the application for security, particularly given the impecuniosity of the corporate Appellants and the substantial amount of costs likely to be incurred by the Respondent. The court also affirmed its power to review and set aside the Registrar's decision.

The Court of Appeal allowed the appeal, set aside the Registrar's judgment, and ordered the corporate Appellants to provide security for the Respondent's costs of the appeal in the sum of $150,000. The proceedings were stayed until security was furnished, and the corporate Appellants were ordered to pay the Respondent's costs of the motion and the appeal from the Registrar's decision. A certificate under the *Suitors' Fund Act 1951* (NSW) was granted to the Appellants in relation to the costs of the appeal, subject to certain conditions.