Sparks NT Pty Ltd v Angkerle Aboriginal Corporation
[2025] NTSC 24
•17 April 2025
CITATION:Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24
PARTIES:SPARKS NT PTY LTD
(ABN 52 159 163 390)
v
ANGKERLE ABORIGINAL CORPORATION
(ICN 594)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: Supreme Court exercising Territory jurisdiction
FILE NO:2024-00365-SC
DELIVERED: 17 April 2025
HEARING DATE: 25 March 2025
JUDGMENT OF: Smyth A/AsJ
CATCHWORDS:
COSTS – security for costs – principles which apply to the making of an order – assessment of nature of the security and the quantum of the security
Rig Air And Diesel Pty Ltd v Allwell (NT) Pty Ltd [2024] NTSC 107; Idoport Pty Ltd v National Austalia Bank Ltd [2001] NSWSC 744; Jazabas Pty Ltd & Ors v Hadded & Ors [2007] NSWCA 291; KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57; Darwin Joinery and Furniture Manufacturing Pty Ltd (In Liquidation) v Finch (unreported, Kearny J, 23 July 1991); Mac-Attack Equipment Hire Pty Ltd v AJ Lucas Operations Pty Ltd [2010] NTSC 27; Anchung Pty Ltd v Northern Territory of Australia [2015] NTSC 76 referred to.
Supreme Court Rules, O.62 r.2
Corporations Act 2001(Cth), s 1335
Dal Pont G E, Law of Costs, 3rd Ed. 2013
REPRESENTATION:
Counsel:
Plaintiff:C Ford SC
Defendant:E Keynes
Solicitors:
Plaintiff:De Silva Hebron Barristers & Solicitors
Defendant:Povey Stirk Lawyers
Judgment category classification: B
Judgment ID Number: Smy2503
Number of pages: 24
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24
No. 2024-00365-SC
BETWEEN:
SPARKS NT PTY LTD
(ABN 52 159 163 390)
Plaintiff
AND:
ANGKERLE ABORIGINAL CORPORATION
(ICN 594)
Defendant
CORAM: SMYTH A/AsJ
REASONS FOR JUDGMENT
(Delivered 17 April 2025)
The Defendant has made application for an order for security of costs, and other ancillary orders, against the Plaintiff, by summons filed 16 December 2024. In particular, the Defendant seeks security of costs in the amount of $201,243.50 and for the Plaintiff’s claims to be stayed pending compliance with the order.
Background to Proceeding
The background to this matter has not followed the regular path in respect to a security of costs application. Proceedings were commenced by the Plaintiff on 9 February 2024, seeking specific performance of a contract between the Plaintiff and Defendant and alternatively an order for damages. A defence was filed on 22 February 2024. A summary judgment application was made by the Plaintiff on 27 May 2024 which was ultimately dismissed. A second plaintiff, Leonard Pratt (Pratt), sought relief in respect to a defamation claim, although he is no longer a party to the proceedings.
On 10 July 2024, the parties participated in private mediation which resulted in the entering of a settlement deed. The terms of the settlement deed provided for the discontinuance of the proceeding against the Defendant upon delivery of certain nominated equipment to the Plaintiff within 30 days, with both parties bearing the costs of transporting the nominated equipment equally. Following the execution of the deed of settlement the Defendant delivered the equipment to the Plaintiff. On 30 September 2024 the Plaintiff advised the Defendant that it did not consider the matter settled. Leave was subsequently granted to file an amended Statement of Claim, the prior claim in respect to the original claim was abandoned, and a new claim in respect to a breach of implied terms, in the deed of settlement, was raised. Additionally, misleading and deceptive conduct was alleged contrary to s 18 of the Australian Consumer Law.[1] In effect, in the proceedings the Plaintiff alleged that it was an implied term of the settlement deed that the equipment was worth at least $363,000 and had been stored safely and appropriately, when it had in fact not been. A defence and counterclaim were filed by the Defendant on 1 November 2024 denying the substance of the implied term, or that it had engaged in misleading or deceptive conduct, and otherwise claiming that the Plaintiff had since acted in a way consistent with the continuation of obligations under the settlement deed, and sought specific performance, and additionally a set off.
It is in the context of this latter aspect of the dispute, over the terms of the settlement deed and related conduct, that an application for security of costs has arisen.
Security of Costs
The Defendant seeks an order for security of costs pursuant to Rule 62.02(1) of the Supreme Court Rules 1987 (NT) (SCR). That rule provides:
62.02 When to give security
(1) Where:
(a) the plaintiff is ordinarily resident out of the Territory;
(b) the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues not for his own benefit but for the benefit of another person and there is reason to believe that the plaintiff has insufficient assets in the Territory to pay the costs of the defendant if ordered to do so;
(c)a proceeding by the plaintiff in another court for the same claim is pending;
(d) subject to subrule (2), the address of the plaintiff is not stated or is not stated correctly in his originating process;
(e) the plaintiff has changed his address after the commencement of the proceeding in order to avoid the consequences of the proceeding; or
(f) under an Act or the Corporations Act 2001 the Court may require security for costs,
the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against the defendant be stayed until the security is given.
Section 1335 of the Corporations Act 2001 (Cth) provides:
Where a corporation is Plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the Defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.
The principles to be applied in respect to the consideration of a security for costs application are well established, and were recently restated by Luppino AsJ in Rig Air And Diesel Pty Ltd v Allwell (NT) Pty Ltd (footnotes omitted):[2]
“Determination of whether security for costs should be ordered is a two-step process. Firstly, the Defendant must show that one of the qualifying requirements set out in Rule 62.02(1) are satisfied. The second step is the favourable exercise of the Court's discretion and that involves a balancing of the competing interests of the parties
That discretion is unfettered and is to be exercised having regard to all the circumstances of the case. There are however well established guidelines from previous cases which Courts typically have regard to in determining security for costs applications. A number of guidelines were identified in Jazabas Pty Ltd & Ors v Haddad & Ors (“Jazabas”). The relevant factors in the current application, as identified by the parties in argument are, the strength of the Plaintiff's case, the failure of the Plaintiff to put on evidence of the financial position of the Plaintiff and its backers, the delay in bringing the application and whether it would be unfair or oppressive to make the order as it would stultify the proceedings.
I deal first with the question of whether the discretion has been enlivened. The threshold set in Rule 62.02(1) is widely recognised in the authorities as being undemanding. It merely requires the applicant to show that there is a rational basis sufficient to establish a prima facie case.”
The determination of the financial position of the Plaintiff, with respect to whether the specific discretion in s 1335 of the Corporations Act 2001 (Cth), is enlivened, will also be a factor in the exercise of the overall discretion itself.[3]
The Courts have typically had regard to well established guidelines in determining security for costs applications, which are as follows:[4]
(a)The effect of the delay in bringing the application – such applications should be brought promptly. Relevant factors include prejudice to the Plaintiff, whether reasonable explanations for the delay exist and the timing of the application;
(b)Whether the Defendant has adequate security – whether the applicant has any rights which it can exercise against assets of the plaintiff to satisfy an order for costs in its favour;[5]
(c)The bona fides and strength of the Plaintiff’s case - as a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary, the court should proceed on the basis that the claim is bona fide with a reasonable prospect of success;
(d)Whether the application for security is oppressive and will stultify the plaintiff’s claim – the court must assess whether or not the plaintiff will be prevented from proceeding if security for costs is ordered. Evidence as to the financial resources of those standing behind the company and who stand to benefit is relevant;
(e)Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security and whether the persons standing behind the company have offered personal undertakings to be liable for the costs and if so what the form of the undertaking is;
(f)Whether the Plaintiff’s impecuniosity was caused by the Defendant’s conduct;
(g)Is the Plaintiff’s Claim defensive - security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves and thus forced to litigate;
(h)Overlapping claims between a corporate and natural person – the Court should not make security of costs orders where corporate and natural persons are parties and claims overlap; and
(i)The reasonableness of the quantum - The Court is to determine an adequate amount for security having regard to the nature of the claim, which is an amount that is neither illusory nor oppressive.
Parties’ Evidence
The Defendant relied on the affidavit evidence of Alison Phillis (Phillis) sworn 16 December 2024, which was taken as read. Phillis deposes to a number of matters in her affidavit which can be summarised as follows:
(a) In respect to the term of the settlement requiring delivery of the equipment that the Plaintiff had not reimbursed the Defendant for its half share of the transport costs in the amount of $3,305.25.
(b)On 30 September 2024 the solicitor for the Plaintiff advised Phillis that it did not consider the matter settled.
(c) On 1 November 2024 Phillis wrote to the solicitor for the Plaintiff requesting that it not dispose of the property/equipment (ie. any of the equipment which the Plaintiff had been given in purported compliance with the terms of the settlement) or remove it from Australia. Phillis was subsequently informed that the Plaintiff wished to sell one item of the equipment, namely a generator, and gave the Defendant the opportunity to take it instead. The Defendant declined on the basis it was uneconomical to collect it, and requested that any proceeds from its sale be paid into Court until further order. The Plaintiff refused to agree to pay any amount into Court and no response was given in respect to any undertaking.
(d) On 19 November 2024 Phillis searched the ASIC and Creditor Watch databases, which showed there was a tax debt due by the Plaintiff to the Australian Taxation Office (ATO), in the amount of $833, 695.41 dating from at least May 2024. The report also indicated the Plaintiff had a greater than 20% chance of default within the next 12 months. Searches also revealed the Plaintiff does not own any real property in the Northern Territory.
(e) It was the discovery of the debt to the ATO, the Plaintiff’s failure to pay its half of the transport costs, its disposal of the generator and the failure to give an undertaking to the Court not to dispose of the remaining equipment or pay proceeds into Court, which gave rise to the reasonable belief by the Defendant that the Plaintiff would be unable to pay the Defendant’s costs if ordered to do so.
(f) Phillis’s explanation for the delay in not seeking security for costs at an earlier time was that the proceeding had a second individual Plaintiff initially and the Defendant was unaware of the factors set out in paragraph (d) above. Additionally, the matter had been listed for mediation on 10 July 2024 and had, in her view, settled.
(g) In respect to the quantum of security being sought, Phillis deposed as to her experience in respect to appearing for parties in civil litigation in the Local and Supreme Courts including appearing at taxation of costs hearings. She deposed as to her estimation of what is required to progress the current matter to hearing and using the party-party costs scale as referred to in the SCR. No security of costs is sought for amounts post the filing of the summons for security for costs. On Phillis’s estimate, the Defendant’s costs would be $201,243.50. A breakdown, in the form of a skeleton bill of costs, is Annexure I to the Phillis affidavit and includes estimated costs for: further work in respect to pleadings, taking instructions and drafting affidavits, the security of costs application, summary judgment application, preliminary conferences, discovery, mediation, preparation for hearing, hearing costs, taking judgment and taxation.
The Plaintiff relied on the affidavit evidence of Fiona Hashim (Hashim) promised on 21 March 2025, taken as read, save for paragraphs 6-7 which were subject to objection and not admitted. Hashim’s evidence can be summarised as follows:
(a) The property/equipment the subject of the deed of settlement was in poor condition and worth little.
(b) The Plaintiff’s ATO tax liability first arose in or about August 2023 following lodgement of the Plaintiff’s 2022 financial year tax return. The debt comprises an Income Tax debt, a debt related to Business Activity Statements and General Interest Charges. The debt arose before the proceeding.
(c) On or about 24 February 2025, Hashim was informed by the sole director of the Plaintiff, Pratt, that the Plaintiff, with the assistance of tax negotiators, Tax Assure, were in negotiations to arrange a payment plan with the ATO over repayment of the debt. The correspondence with Tax Assure was annexed to Hashim’s affidavit. The Plaintiff had been voluntarily paying $1,000 per week to the ATO.
(d) On or about 13 March 2025, Hashim was informed by Pratt that the payment plan had been approved by the ATO. Further, the Plaintiff was informed that no enforcement action against the company would be taken whilst the payment arrangement was ongoing, and that interest will be greatly reduced as part of the arrangement.
(e) On or about 17 March 2025, the first payment of $45,000 was made by the Plaintiff to the ATO as part of the payment plan.
(f) The Plaintiff’s costs in the proceeding to date are $121,782.13 (inclusive of professional costs, counsel fees, mediation costs and filing fees).
(g) Hashim estimates that the Plaintiff’s future costs of the proceeding will be approximately $90,000.
(h) The Plaintiff owns assets in terms of various equipment, machinery, and vehicles to the value of $709,550, and uses those assets in its business as an electrical services contractor with Ventia Australia Pty Ltd.
(i) The Plaintiff’s income for the most recently lodged tax return in the 2022-2023 financial year was $5,557,076. That income increased by the amount of $1,982,478 from the preceding financial year (2021-2022). The Plaintiff’s most recent tax return and financial statements for 2022-2023 were annexed to Hashim’s affidavit. Copies of the Plaintiff’s 2023-2024 financial year tax returns and financial statements had not yet been lodged. However, the Plaintiff’s income for the 2023-2024 financial year is approximately $862,725.57.
(j) The Plaintiff’s financial circumstances have been significantly impacted by the Defendant’s actions, whilst external factors such as unsuccessful tender bids have played a minor role. Hashim deposes that she was informed by Pratt that if the Plaintiff is required to provide security for costs in the amount sought by the Defendant, the deprivation of cash will hinder the Plaintiff’s performance of contracts and the payment of legal fees to prosecute this claim.
Disposition
(A) The Discretion Enlivened
To enliven the Court’s discretion an applicant must show that there is a rational basis sufficient to establish a prima facie case.
The Defendant points to the following aspects sufficient to establish a prima facie case: the Plaintiff owns no real property in the Northern Territory; the generator was sold and the proceeds retained by the Plaintiff instead of paying the proceeds into Court; the Plaintiff has a significant and substantial debt to the ATO and there is no evidence of the payment plan agreed to including information as to instalments or how the plans are to be met on-going from the income of the Plaintiff; the value of assets owned by the Plaintiff is baldly stated by the Plaintiff with no proof of valuation or resale value; the Plaintiff’s income for 2022-2023 is only income not expenditure and is almost two years old; other than an estimate of current income (not expenditure) for the 2024 year, no substantial evidence is provided as to financial circumstances; and a security of costs order in the vicinity of what is sought will hinder its business and ability to pay legal fees.
I am satisfied that a prima facie case has been made out that the Plaintiff will be unable to pay the costs of the Defendant if successful in its defence.
(B) Exercise of the Discretion
With respect to the issue of delay, the proceeding was commenced in February 2024 and the application for security of costs was filed on 12 December 2024. A delay is not usually a factor which falls to the favour of an applicant. A delay in permitting a Plaintiff to incur substantial costs in preparing for a proceeding has the potential to cause undue prejudice and oppression, such that the security order will stifle the action. A Plaintiff is likely to have incurred costs in pursuing the matter that it would not have incurred had the application been made in the meantime, and these costs will have been wasted if the order threatens the plaintiff’s financial ability to continue. In this proceeding the Plaintiff says it has incurred costs which will be lost if security is ordered and proceedings are stayed (because presumably it will be unable to pay security or it if does it will be unable to continue the litigation).
If there is reasonable explanation for the delay it will carry less weight. In this proceeding the original claim was abandoned and replaced with a new one, following purported settlement. Although the security of costs application was made late in the “original” proceeding, it was relatively early in what could be referred to as the “new” proceeding, after a time the Defendant says the conduct of the Plaintiff gave rise to suspicions as to its financial circumstances. In respect to the Defendant’s explanation relating to not seeking security of costs earlier due to the presence of another individual plaintiff, although a claim of defamation was made by Pratt alleging damage to his reputation brought about by certain imputations, the imputations were linked to allegations made against the Defendant. There appears to have been some overlap, and the claim by Pratt was not totally divorced from the “main claim” by the Plaintiff. I accept the explanation for the delay proffered by the Defendant, such that it is not a determinative factor weighing against the application.
I will address the issue of stultification of the proceeding below.
The Plaintiff argues that the Defendant will have adequate security if it is successful, namely it will be entitled to “take back the equipment it says is worth $363,000”. I take that to mean that if successful in any costs order which is enforced against the Plaintiff, the Defendant may execute a warrant of seizure and sale (or take some similar enforcement action) against the Plaintiff’s property. As I understand the pleadings, the Plaintiff claims it was an implied term of settlement, or misleading or deceptive misrepresentations were given, that the equipment was worth $363,000. Based on the Defendant’s amended defence, it is not apparent that the Defendant agrees that the equipment was worth at least $363,000. Further, at least some of the property has been sold by the Plaintiff. Further, the current value of the property (let alone its future value after trial) is subject to conjecture and no doubt its value will be the subject of expert evidence. Without significantly more evidence in that regard I am not prepared to find that the Plaintiff holds additional assets worth $363,000, and will continue to do so up until and after trial, which the Defendant may seize to make good any costs order.
With respect to the bona fides and strength of the Plaintiff’s case, much will turn on evidence and argument in the substantive proceedings, and in particular to what extent evidence from the mediation is admissible. I am prepared to accept that the Plaintiff’s case is bona fide and it has a reasonable case. This factor is somewhat neutral.
With respect to the issue of potential stultification of the proceedings, oppression and the plaintiff’s financial situation, the Court must determine whether or not the Plaintiff will be prohibited from proceeding if security is ordered. The Plaintiff’s evidence is that the payment of security would “hinder” the performance of its contracts and payment of its legal fees. By hindrance of performance of contracts, I assume that to mean it would hinder its ability to make income, which could then be applied to prosecuting the proceeding. In order to fully assess hindrance of the ability to pay legal fees or to perform contracts, evidence of the Plaintiff’s financial and contractual situation would need to be assessed by the Court. No such substantial evidence was provided and therefore I am not satisfied to the requisite extent that the case would be stultified.
The evidence as to the Plaintiff’s financial situation, now or into the future, is inadequate. I am prepared to accept evidence of the Plaintiff’s costs incurred to date of approximately $121,000, and its estimated future legal costs may be $90,000. Those are matters which can be confirmed by the Plaintiff’s lawyers (from the rendering of invoices and anticipated future costs). However, the Plaintiff’s evidence in respect to its assets in the form of the value of its vehicles and equipment, comprises simply a statement of potential value by the Plaintiff. There is no independent verification (in that sense I would not have required evidence of an exact value but at least some corroboration of values such as policies of insurance confirming insured value or their listing as discrete assets in balance sheets). I do not know if the vehicles and equipment are owned outright or are subject to outstanding finance (which would therefore affect the ability to liquidate the assets to make good a costs order).[6] Other evidence of the Plaintiff’s current financial position is inadequate to make a proper assessment on its financial situation now, let alone extrapolating it to a future time when a costs order may be enforced. Financial records from 2022-2023 are not particularly helpful, nor is an estimate of the estimated income from last financial year (2023-2024). I would have expected, as is the case with many businesses, that evidence of current financial circumstances, through the provision of year to date balance sheets, or profit and loss statements, as well as a prediction of future income and expenses (which is usually anticipated in a yearly budget) could have been provided along with evidence of the effect a payment of the security would have on those accounts (and payment of its own legal fees). The principle is stated by Dal Pont:[7]
“A plaintiff company seeking to resist an application for security for costs should place before the court a full and frank statement of its assets and liabilities, including those of its shareholders. The statement of its own assets and liabilities may serve to counter the defendant’s allegation that the plaintiff will be unable to meet an adverse costs order….”.
In this case there has been, in my opinion, less than a full and frank statement of the Plaintiff’s assets and liabilities. That is augmented by the lack of detail in respect to the payment plan arranged with the ATO. Evidence was given that there were arrangements to enter into a payment plan to address the ATO debt, a plan was entered into, and a substantial initial payment was made. However, there is no evidence as to the nature of the plan, how many payments are to be made, and when, or what effect they may have on the financial circumstances of the Plaintiff. A failure to fully and frankly provide that information does not assist the Plaintiff in resisting the order for security. Further, there has been absolutely no evidence of the willingness of those standing behind the company, who would benefit from the litigation, to provide security. Pratt, on the evidence, is the sole shareholder in the plaintiff company, and it could be inferred that he is the one who would likely benefit from the litigation. I am not satisfied, on the evidence, that the Plaintiff would have sufficient assets to satisfy a costs order against it. I am not satisfied that, on the evidence, any impecuniosity of the Plaintiff is due to the actions of the Defendant.
With respect to the issue as to whether the Plaintiff’s claims are defensive, they clearly are not. The Plaintiff seeks damages for breach of contract or contravention of the Australian Consumer Law. Further, I am not persuaded that this matter is so close to trial that security for costs should not be ordered.
In respect to quantum, the principles were well stated by Luppino M in Anchung Pty Ltd v Northern Territory of Australia [2015] NTSC 76 at [34-35] (footnotes omitted):
“In relation to the quantum of any order for security, in Mac-Attack Equipment Hire Pty Ltd v AJ Lucas Operations Pty Ltd. I summarised the authorities and set out the principles relevant to the determination of an appropriate amount to order by way of security for costs. Those principles, insofar as they are relevant to the current case, are:
1. The Court is to determine an adequate amount for security having regard to the nature of the claim, which is an amount that is neither illusory nor oppressive;
2. The amount ordered does not have to be a pre-estimate of the actual costs;
3. It is appropriate to factor in contingencies such as the possibility that the action will settle at same stage.
The usual starting point in determining what is an adequate amount is to estimate the likely costs incurred to date (although past costs will not now be relevant given the order I propose to make) and the likely costs to be incurred until the matter is completed.”
I would also add that it would be appropriate to allow for a deduction on account of any Counterclaim.[8]
The nature of the claim is a dispute in respect to the property the subject of the settlement deed, which the Plaintiff claims was represented to be at least $363,000.
The Plaintiff’s written submissions suggest that the Defendant’s appropriate costs should be estimated at $18,756. However, the Plaintiff’s estimate of its own costs of the proceeding, going forward, is $90,000.[9]
Phillis’s affidavit has set out in a spreadsheet, or effectively in a skeleton bill of costs, her estimate of the Defendant’s reasonable costs. The Defendant estimates its costs, going forward, to be $201,343.50. The Defendant’s skeleton bill of costs is divided into 11 sections comprising: Pleadings, Evidence, Interlocutory Applications (including security for costs and summary judgment), Preliminary conferences, Miscellaneous, Discovery and Inspection, Mediation, Preparation for hearing, Hearing, Judgment and Taxation/Costs. The bill is further divided into columns for solicitor’s costs, counsel’s costs (at the SCR scale) and anticipated disbursements. Whilst the estimate is detailed, I am mindful that precision is ordinarily neither necessary or possible, and that an amount of security that is fixed is not ordinarily intended as a pre-estimate of the actual amount of party-party costs. Rather the objective is to find a reasonable estimate of the Defendant’s costs that the Plaintiff, if unsuccessful at trial, would be ordered to pay to the Defendant. The Defendant’s estimate of costs is not excessive but in my view is ambitious in parts which should be severed.
The starting position is that the Defendant does not claim any costs incurred prior to the filing of the summons for security for costs (except for costs of preparing for the summons). The summons was filed on 16 December 2024.
An assessment of the relevant parts of the Defendant’s skeleton bill, making appropriate deductions where reasonable, is as follows:
(a)Pleadings: The two hours and four hours respectively for solicitor and counsel’s time to draft a defence and counterclaim and to peruse the reply and defence to counterclaim, is reasonable.
(b)Evidence: Fifty hours and twenty hours respectfully for solicitor and counsel’s time to review the Plaintiff’s affidavits and taking instructions to draft the Defendant’s affidavits is estimated. These amounts are difficult to assess without first seeing the affidavits but would seem slightly excessive given the nature of the proceeding. I would reduce them by 20% each.
(c)Interlocutory Applications: includes the security for costs and a summary judgment application. Twenty six hours and two days-twelve hours respectively for solicitor and counsel’s time is estimated for the security for costs application. This appears partially reasonable, but I would reduce the amount for hearing of the motion and preparation to 20 hours and 1 day and 12 hours. As for the summary judgment estimate, the application is speculative, I am inclined not to allow it.
(d)Preliminary conferences – the estimate of three and three hours respectively would appear reasonable.
(e)Miscellaneous – is a global estimate of fifteen hours for solicitor and counsel. I would allow five hours for each.
(f)Discovery and inspection – Ten and two hours respectively for solicitor and counsel’s time is estimated. This would appear excessive in respect to the narrow scope of the current proceeding. I would allow three hours and one hour respectively.
(g)Mediation – this matter has already been subject to mediation. In my view there is little prospect for a further formal mediation. This is therefore speculative and I would not allow it.
(h)Preparation for hearing – I would allow the estimate in general, although some items appear inflated such as six hours attendance to compile and agree tender bundle and conferences with counsel. I would deduct six hours from solicitor time and four hours from counsel time respectively.
(i)Hearing – the Defendant assumes potentially six witnesses. A two day estimate for hearing is generous but reasonable.
(j)Judgment – two hours for a solicitor is reasonable.
(k)Taxation/Costs – taxation is speculative where costs may be agreed, and taxation avoided, and I will not allow it.
Taking those matters into account, I make the following calculations from the Defendant’s estimated costs:
(a) Professional costs = 268.5 hrs – 151 hrs = 117.5 x $451 = $52, 992.50
(b) Counsel’s hourly costs = 90 hrs – 40 hrs = 50 x $385 = $19,250
(c) Counsel’s daily costs = 10 days – 4 days = 6 x $3850 = $23,100
(d) Disbursements = $7000 - $3000 = $4000
Total $99,342.50
There is no evidence as to whether Phillis’s estimate of costs includes or excludes costs relating to pursuing the Defendant’s counterclaim. I will allow a discount of $10,000 for costs which may be incurred in respect to the Defendant’s counterclaim. I will not provide a further discount for the prospects of further settlement as I assess the prospects as low given the circumstances. I am satisfied that an adequate amount for the Defendant’s security would be an amount of $89,342.50 rounded to $90,000.00. That is an amount which is neither illusory or oppressive.
In my view applying the principles stated above to the facts of this case, an order for security for costs is appropriate. In terms of the quantum of the order, noting I am not obliged to fix an amount reflective of the full estimated costs and that I can have regard to contingencies, an adequate amount is $90,000.00.
Orders
I make the following orders:
(1) The Plaintiff is to pay into the Supreme Court Litigants fund account, the sum of $90,000 by way of security for costs.
(2)The Plaintiff is to pay $90,000 pursuant to Order 1 above, by a date to be fixed.
(3)The funds paid into Court pursuant to Order 1 above, will be invested in a Term Deposit for an initial period of 90 days.
(4)The Plaintiff’s claims against the Defendant be stayed pending compliance with Order 1 above.
(5)In the event that the Plaintiff defaults in complying with Order 1, and the default continues in excess of 21 days, the Plaintiff’s claim be dismissed against the Defendant on terms that the Plaintiff pays the Defendant’s costs of the claim.
(6) I will hear the parties as to any further orders, such as the manner in which the security is to be provided (if necessary) and the costs of the application.
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[1]Competition and Consumer Act 2010 (Cth), Schedule 2.
[2] Rig Air And Diesel Pty Ltd v Allwell (NT) Pty Ltd [2024] NTSC 107 at [39]-[41].
[3] Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [56] per Einstein J.
[4] As in part summarised in Jazabas Pty Ltd & Ors v Hadded & Ors [2007] NSWCA 291 at [74] citing KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196-198. Also see considerations as to the nature of the discretion in Dal Pont, Law of Costs, 3rd Ed. 2013 Ch 29.
[5] Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57 at [6(x)] and [61].
[6]Annexure FH-7 of Hashim’s affidavit annexes the Special Purpose Financial Report of the Plaintiff for the year ending June 2023, and seems to indicate some of the vehicles, at least at the time of that report, may have been subject to finance, although that was not explained.
[7] Dal Pont, Law of Costs, 3rd Ed. 2013, p 982. Also see Darwin Joinery and Furniture Manufacturing Pty Ltd (In Liquidation) v Finch (unreported decision of Kearny J, 23 July 1991) cited in Mac-Attack Equipment Hire Pty Ltd v AJ Lucas Operations Pty Ltd [2010] NTSC 27.
[8] See Mac-Attack Equipment Hire Pty Ltd v AJ Lucas Operations Pty Ltd [2010] NTSC 27 at [12(4)].
[9] As set out in Hashim’s affidavit at [15].
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