PPK Willoughby Pty Ltd v Baird

PPK Willoughby Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge who had refused an application for security for costs made by Baird (the respondent). The dispute concerned whether the primary judge had erred in exercising their discretion to refuse security for costs.

The central legal issue before the Court of Appeal was whether the primary judge had miscarried in their discretion by refusing to order security for costs. This involved considering the relevance of delay in bringing an application for security for costs, particularly where no prejudice had been demonstrated to have arisen from that delay. The Court also had to consider whether the mere incurring of legal costs by a defendant generates a presumption of prejudice, and the effect of the decision in *Green v CGU Insurance Ltd* [2008] NSWCA 148 on these considerations.

Bell P and Simpson AJA held that the primary judge’s discretion had not miscarried. Their Honours noted that while delay in seeking security for costs can be a relevant factor, it is not determinative, especially where no prejudice has been shown to have been caused by the delay. The Court affirmed that the mere incurring of legal costs does not, in itself, create a presumption of prejudice sufficient to warrant an order for security for costs. The principles established in *Green v CGU Insurance Ltd* were applied, emphasizing that the court must consider all relevant circumstances when exercising its discretion.

The application for leave to appeal was dismissed with costs.