S Lander and Partners Pty Limited v Todd - [2017] NSWSC 1119

Supreme Court

New South Wales

Medium Neutral Citation: S Lander & Partners Pty Limited v Todd and anor [2017] NSWSC 1119
Hearing dates: 1 August 2017
Date of orders: 24 August 2017
Decision date: 24 August 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) ORDER that the plaintiff provide security for the defendants’ costs in the sum of $100,000.

(2) ORDER that this security be paid or secured in two tranches of $50,000 as follows:

(i)The first tranche to be paid or secured within 28 days of these orders.
(ii)The second tranche to be paid or secured within 28 days after the fixture of the proceedings for trial.

(3) ORDER that the security be in one of the following forms:
(i) Payment of those sums into Court; or
(ii) A bank guarantee in that sum; or
(iii) An undertaking by Duncan Lander to be personally liable for those costs, such guarantee to be secured by a registered mortgage over the property Glenelg.

(4) ORDER that, in the event the security is not provided within time stipulated by order (2), the proceedings be thereafter stayed until such security is provided.

(5) The plaintiff is to pay the defendants’ costs of the motion.
(6) The matter is listed before the Registrar on 3 October 2017.
Catchwords: CIVIL LAW – application for security for costs – where plaintiff a trust company not trading except for the purpose of the current litigation – where plaintiff concedes it would be unable to meet a costs order – where delay in bringing application – whether delay justified – form of order
Legislation Cited: Uniform Civil Procedures Rules 2005 (NSW)
Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth)
Cases Cited: Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301
Eastman v DPP (ACT) (2003) 214 CLR 318
Equity Trust Ltd v RM Walsh land Holdings Pty Ltd (2012) NSW SC 427
Li v NSW [2013] NSWCA 165
Nguyen v R [2008] NSWCCA 332
Sharjade v Darwinia Estate & Anor [2006] NSWSC 708
Smail v Burton (1975) 1 ACLR 74
Category: Procedural and other rulings
Parties: S Lander & Partners Pty Limited & Partners Family Trust (Plaintiff)
Stephen Todd (First Defendant)
Agronomy Plus Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr M Gunning (Plaintiff)
Mr M F Newton (Defendants)
Solicitors:
Gordon Garling Moffitt Lawyers (Plaintiff)
Clyde & Co (Defendants)

File Number(s): 2016/00151648

Judgment

By notice of motion filed 20 June 2017, the defendants seek an order that the plaintiff provide security for the first and second defendants’ costs within 28 days in an amount to be determined by the Court and that the proceedings be stayed until such security is given. Those orders are sought pursuant to rule 42.21 of the Uniform Civil Procedures Rules 2005 (NSW) and/or s 1335 of the Corporations Act2001 (Cth).
The defendants read two affidavits of its solicitor Edward Samuel Timothy Burrell…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1119
Decision Date: 24 August 2017

CaseChat Overview and Summary

S Lander and Partners Pty Limited, a trust company, filed a claim against Todd. The claim was for unpaid legal fees and costs. The Federal Court was asked to consider an application for security for costs, given that the plaintiff acknowledged it would be unable to meet a costs order if the defendant was successful. The core issue was whether the delay in filing the application could be justified and what form the order should take. The court needed to assess the risk of injustice to the defendant if security was ordered and the extent to which the plaintiff's delay in filing the application impacted the fairness of the application.

The court evaluated the delay in filing the application, considering that the plaintiff had acknowledged its inability to pay costs. The court held that the delay did not necessarily preclude the granting of security for costs but had to be weighed against the risk of injustice to the defendant. The court found that the delay did not entirely negate the plaintiff's entitlement to security for costs but required a careful consideration of the circumstances and the balance of convenience. Ultimately, the court determined that the risk of injustice to the defendant outweighed the delay in filing the application. The court concluded that the application should proceed, and security for costs should be granted in a form that reflected the plaintiff's financial position and the need to protect the defendant from potential financial hardship.

Orders