PPK Willoughby Pty Ltd v Baird

PPK Willoughby Pty Ltd (the appellant) sought to appeal a decision, and Baird and others (the respondents) applied for security for their costs of the appeal. The application was heard by Brereton JA in the Court of Appeal of New South Wales. The core of the dispute concerned whether the appellant should be required to provide security for the respondents' potential costs given the appellant's financial position.

The primary legal issue before the Court was whether it should exercise its statutory power under section 1335 of the *Corporations Act 2001* (Cth) to order the appellant to provide security for the costs of the respondents in the appeal. This involved considering whether there was credible evidence that the appellant might be unable to pay an adverse costs order if the appeal were unsuccessful, and whether the quantum of security sought by the respondents was appropriate.

Brereton JA found that there was credible evidence suggesting the appellant might be unable to satisfy an adverse costs order. The appellant did not appear to oppose the application for security, which weighed in favour of granting the order. While the respondents sought a substantial sum, the Court determined that the proposed quantum was excessive and reduced it to $50,000. The Court applied the principles that security for costs is a discretionary power to be exercised having regard to the evidence of impecuniosity and the need to ensure a respondent is not left without recourse for their costs.

The Court ordered that the appellant provide security in the sum of $50,000 within ten business days, in a form acceptable to the registrar. The proceedings were stayed until this security was provided, with liberty to apply in the event of non-compliance. The costs of the application for security were made costs in the appeal.