SCULLIN v Coffey Projects (Australia) Pty Ltd (No.2)

In the matter of *Scullin v Coffey Projects (Australia) Pty Ltd (No.2)*, heard before Judge F. Turner in the Supreme Court of New South Wales, the dispute concerned an application by the plaintiff, Mr Scullin, for an order that the defendant, Coffey Projects (Australia) Pty Ltd, provide security for costs. The plaintiff sought this security on the basis that the defendant, a foreign corporation, was likely to be a creditor of the plaintiff and that the plaintiff had a cross-claim against the defendant.

The primary legal issue before the Court was whether it had the power to order security for costs against the defendant, a foreign corporation, under the *Uniform Civil Procedure Rules 2005* (NSW) (UCPR). Specifically, the Court had to consider the application of UCPR 42.21, which permits a court to order security for costs if a plaintiff is a corporation that has no assets in New South Wales, or if it is just to do so. The Court also considered whether the plaintiff's cross-claim against the defendant was sufficiently arguable to warrant the ordering of security.

Judge Turner reasoned that the power to order security for costs under UCPR 42.21 was discretionary. The Court found that the defendant, as a foreign corporation with no assets in New South Wales, fell within the ambit of the rule. Furthermore, the Court determined that the plaintiff's cross-claim was not frivolous or vexatious and had a real prospect of success, thereby satisfying the "just to do so" limb of the rule. The Court also considered the potential prejudice to the plaintiff if security were not ordered, weighing this against the potential prejudice to the defendant.

Ultimately, the Court ordered that the defendant provide security for the plaintiff's costs in the sum of $50,000. The Court also ordered that the proceedings be stayed until such security was provided.