Sparks NT Pty Ltd v Angkerle Aboriginal Corporation
[2025] NTCA 9
•4 September 2025
CITATION: Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTCA 9
PARTIES: SPARKS NT PTY LTD
(ACN 159 163 390)
v
ANGKERLE ABORIGINAL CORPORATION
(ICN 594)
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL from the Supreme Court exercising Territory jurisdiction
FILE NO:AP 3 of 2025 (22528001)
DELIVERED: 4 September 2025
HEARING DATE: 13 August 2025
JUDGMENT OF: Grant CJ, Huntingford J & Riley AJ
CATCHWORDS:
COSTS – Security for costs – Legal nature of the plaintiff – Plaintiff is a company – Relevant factors – Impecuniosity – Timing
Whether error in determining reason to believe that plaintiff corporation unable to pay defendant’s costs if defendant successful – Evidence sufficient to establish prima facie case that plaintiff would be unable to pay defendant’s costs if successful – Evidentiary burden shifted to plaintiff to establish it would be able to pay defendant’s costs – Bald assertions in affidavit evidence insufficient for that purpose – Sufficient estimate of the defendant’s costs made to determine threshold issue – Whether error in exercise of discretion to order security for costs – Governed by principles in House v The King – No material error in findings of fact – No error in taking into account considerations – No error of principle – Decision not “unreasonable or plainly unjust” – No error in assessment of quantum – Application for leave to appeal allowed and appeal dismissed.
Corporations Act 2001 (Cth) s 1335
Supreme Court Rules 1987 (NT) r 62.02Anchung Pty Ltd v Northern Territory of Australia [2015] NTSC 76, Arnold v Queensland (1987) 73 ALR 607, Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [2009] WASC 299, Bailey v Beagle Management Pty Ltd (2001) 182 ALR 264, Beluga Developments Pty Ltd v Sobel Investments Pty Ltd [2010] VSC 303, Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 303, Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301, DGR Global Ltd v PT Limited [2025] QCA 122, Drumdurno Pty Ltd v Braham (1982) 42 ALR 563, Green v CGU Insurance Ltd (2008) 67 ACSR 105, Hydrocool Pty Ltd v Hepburn (No 2) [2010] FCA 285, Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276, Mannix Electrical Pty Ltd v Belport Pty Ltd (2019) 134 SASR 438, Octocane Pty Ltd v SRJ Property Development Pty Ltd [1999] SASC 231, Rimhart Nominees Pty Ltd v Glenent Pty Ltd [2009] SASC 267, referred to.
REPRESENTATION:
Counsel:
Applicant:C Ford SC
Respondent: S Heidenreich
Solicitors:
Applicant:De Silva Hebron
Respondent: Povey Stirk
Judgment category classification: B
Number of pages: 22
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTCA 9
No. AP 3 of 2025 (22528001)
BETWEEN:
SPARKS NT PTY LTD
(ACN 159 163 390)
Applicant
AND:
ANGKERLE ABORIGINAL CORPORATION
(ICN 594)
Respondent
CORAM: GRANT CJ, HUNTINGFORD J & RILEY AJ
REASONS FOR JUDGMENT
(Delivered 4 September 2025)
THE COURT:
On 17 April 2025, an Associate Justice of this Court (the primary judge) made orders that the applicant, Sparks NT Pty Ltd (Sparks), pay into the Supreme Court Litigants Fund account the sum of $90,000 by way of security for costs in proceedings in which Sparks was the plaintiff and Angkerle Aboriginal Corporation (AAC) was the defendant. Sparks’s claims against AAC were stayed pending compliance with that order.
Sparks now seeks leave to appeal against the order that it pay security for costs. Leave to appeal is required pursuant to s 53(1) of the Supreme Court Act 1979 (NT). The principal proposed ground of appeal is that the primary judge erred in mistaking facts, taking into account irrelevant matters, failing to take into account relevant matters and acting contrary to principle, and, further, that the decision was unreasonable or plainly unjust such that it may be inferred that there was a failure to exercise the discretion properly. In support of that ground Sparks particularised ten matters set out in the proposed notice of appeal.
Factual and procedural background
In February 2024, Sparks commenced proceedings in the Supreme Court seeking relief against AAC by way of specific performance of a contract entered into between Sparks and AAC in November 2023. In the alternative, Sparks sought an order for damages. The claim arose out of a contract between the parties for the design and construction of a solar power plant at Standley Chasm in the Northern Territory of Australia. A second plaintiff in those proceedings, Leonard Pratt, also sought relief in respect of an asserted defamation.
Sparks made an application for summary judgment which, following a hearing, was dismissed on 17 May 2024. On 10 July 2024, the parties participated in a mediation which resulted in the parties entering into a settlement deed (the Deed) which relevantly provided:
(a) upon AAC transporting certain listed equipment to a location nominated by Sparks within 30 days of the date of the Deed the parties would take all steps necessary to discontinue the proceedings by consent with no order as to costs;
(b) each party would bear the cost of transporting the equipment in equal parts; and
(c)each party would bear its own costs of and incidental to the proceedings.
Following the settlement AAC delivered the equipment to Sparks but, on 30 September 2024, Sparks advised AAC that it did not consider the matter settled. Thereafter Sparks obtained leave to amend its statement of claim to remove the previous claims for specific performance and damages and remove Mr Pratt as a plaintiff.
The amended statement of claim pleaded a fresh cause of action alleging that the parties had entered a deed of settlement which included implied terms that the equipment to be transported was worth at least $363,000 and had been stored safely by AAC, and that a generator which formed part of the equipment had recently been serviced. Those terms were said to be implied as a matter of law given the nature of the Deed and by virtue of representations made at the mediation. It was then pleaded that AAC breached the implied terms of the Deed and that the representations were misleading or deceptive because the equipment was worth substantially less than had been represented and had not been stored appropriately or recently serviced. Sparks sought damages for breach of the Deed or, alternatively, for misleading and deceptive conduct contrary to the Australian Consumer Law.
AAC filed a defence and counterclaim to the amended statement of claim denying liability, joining issue and seeking enforcement of the terms of the Deed by discontinuance of the proceedings.
On 8 November 2024, Sparks advised AAC that it wished to sell the generator and AAC consented to this course on condition that the proceeds of the sale be paid into court. Sparks responded that it did not intend to pay the proceeds of sale into court.
On 19 November 2024, AAC conducted a search of the Australian Securities & Investment Commission (ASIC) and Creditor Watch databases in relation to Sparks. These searches revealed Sparks was in default to the Australian Taxation Office in the amount of $833,695.41 and had been in default since at least May 2024. On 6 December 2024, AAC requested that Sparks pay security for costs into court but Sparks refused to do so.
In those circumstances AAC made application to the Court for an order for security for costs in the sum of $201,243.50. On 17 April 2025, the primary judge found a prima facie case that Sparks would be unable to pay AAC’s costs if its defence was successful, and that discretionary considerations warranted an order for security for costs in the amount of $90,000.[1]
The application for leave to appeal and the substantive appeal were heard together. Sparks submitted there were errors of law made at each of the three stages of the evaluation. Those stages were described by the applicant as the threshold stage, the discretionary stage and the quantum stage.
The threshold stage
Rule 62.02(1)(b) of the Supreme Court Rules 1987 (NT) relevantly provides:
62.02 When to give security
(1) Where:
(a) …
(b) the plaintiff is a corporation … 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) …
(d) …
(e) …; 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.
By way of complement to that provision, s 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 a 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 security is given.
Sparks submitted that in considering the threshold issue the primary judge “erred in discounting to zero the uncontested value of Sparks equipment of $778,950”. It was submitted that the primary judge wrongly dismissed the entire value of those assets because there was no independent verification in the form of an insurance policy or listing on a balance sheet, and because of the possibility of the assets becoming subject to some security interest and/or depreciation before judgment. This, it was said, ignored the assets of Sparks in the Territory, reversed the onus of proof by requiring Sparks to verify the value of the assets and, finally, did not consider the amount of AAC’s potential costs when deciding that Sparks’s assets were insufficient to meet those costs.
Although the decision whether the threshold requirement has been made out is evaluative rather than discretionary in nature, the fact that the assessment is necessarily conducted on a preliminary basis and on limited materials means that any appeal from such a decision is governed by principles similar to those in House v The King. There is an area of decisional freedom in which the identification of error requires more than that the appellate court would have reached a different conclusion. It requires a finding that the primary judge’s assessment of the threshold requirement miscarried in some way.[2]
The evidence relating to the financial position of Sparks was provided in an affidavit made on information and belief by the legal practitioner acting for the company in the proceedings. The affidavit included a second-hand assertion, presumably on instructions from an unnamed principal, that Sparks had assets to the value of $778,950 consisting of various trailers, storage tanks, demountables and vehicles. There was no evidence regarding the condition of those items, how they were valued or whether they were the subject of any charge or encumbrance. The available evidence before the primary judge was sufficient to establish the following matters:[3]
(a)Sparks had no real property in the Northern Territory;
(b) the amount of $833,695.41 had been payable by Sparks to the ATO since at least May 2024 with no details of any payment plan or how such a plan might impact on Sparks’s financial position;
(c) in May 2024, Sparks’s tax default was entered on the public Creditor Watch database, there had been a significant decline in Sparks’s credit rating, and the Creditor Watch report estimated that Sparks had “a greater than 20% chance of default within the next 12 months”;[4]
(d) in November 2024, Sparks sold the generator and retained the proceeds rather than paying them into court in accordance with AAC’s written request;
(e) the value of the assets claimed to be owned by Sparks was “baldly stated” on information and belief with no proof of valuation or resale value;
(f) the statement of the Sparks’s income for 2022–2023 contained no detail of its expenditure for that period and was almost two years old; and
(g) other than an estimate of current income (not expenditure) for the 2024 year, there was no substantial evidence as to Sparks’s financial circumstances.
In the reasons for decision, the primary judge correctly identified the source of the power to order security for costs in the circumstances of this matter by reference to s 1335 of the Corporations Act and rule 62.02 of the Supreme Court Rules. The primary judge correctly identified that it was necessary for an applicant for such an order to enliven the court’s discretion by identifying a rational basis sufficient to establish a prima facie case. On the basis of the evidence identified above, the primary judge concluded that there was a prima facie case made out that Sparks would be unable to pay the costs of AAC if it was successful in its defence.[5] In determining whether there was “reason to believe” that Sparks might be unable to meet an adverse costs order, the primary judge correctly applied a standard less rigorous than “satisfaction” of that matter but higher than a mere “reason to suspect”.[6]
The onus of proof rests throughout upon the party seeking security and the threshold issue is whether there is “credible testimony” demonstrating “reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence”. However, once the evidence presented on behalf of the applicant has satisfied that threshold, the evidentiary burden shifts to the party resisting the order for security for costs to establish that it will be able to pay the defendant’s costs or some other reason or reasons why security should not be granted. In the present case, Sparks sought to do that by the affidavit evidence described above. However, as the primary judge observed, the bald assertions made in that affidavit evidence were insufficient for that purpose. They fell well short of attracting the weight which might be attached to statements prepared by a responsible firm of accountants familiar with the company’s business affairs.[7]
In the absence of evidence adduced by Sparks which contradicted, or at least explained, the other evidence before the Court in relation to its apparently parlous financial situation, there was a sound evidentiary basis for the primary judge to have reason to believe that Sparks would be unable to pay the costs of AAC in the event of a successful defence to the proceedings. The primary judge did not ignore Sparks’s contention and evidence that it had assets in the Northern Territory but, rather, considered the evidence relating to those assets to be inadequate for the reasons disclosed. It is open to a court to draw that inference in circumstances where a plaintiff corporation has produced insufficient evidence of its financial position and no evidence or insufficient evidence of the financial ability and willingness of the corporation’s principals or shareholders to meet any adverse costs order.[8] In doing so, the primary judge did not reverse the onus of proof which remained on AAC throughout.
Finally, in relation to the threshold stage, Sparks complained that the primary judge did not consider the amount of AAC’s potential costs of the proceedings in deciding that Sparks’s assets were insufficient to pay any adverse costs order in the event the defendant was successful in its defence of the proceedings. It was submitted that the question of the ability to pay the defendant’s costs cannot be determined without an assessment of the likely quantum of those costs. No authority was provided to support that contention. In any event, in this case the primary judge had evidence from AAC that its estimate of future costs was $201,243.50 and a skeleton bill of anticipated costs was provided in support of that estimation. In addition, Sparks had submitted that an appropriate figure would be $18,756 notwithstanding it estimated that its own future costs assessed at the same time would be in the amount of $90,000.
While the primary judge did not make express reference to the quantum of the defendant’s costs in that part of the reasons for decision which considered whether the discretion had been enlivened, an assessment of the likely quantum of the defendant’s costs was made and described later in the reasons for decision. That assessment was no doubt in the primary judge’s mind and consideration in determining the question whether there was reason to believe that Sparks’s assets would be insufficient to meet those costs. In determining the quantum of the defendant’s costs, the primary judge adopted the observations made in Anchung Pty Ltd v Northern Territory of Australia[9] in the following terms:
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 some stage.
The usual starting point in determining what is an adequate amount is to estimate the likely costs incurred to date … and the likely costs to be incurred until the matter is completed.
In considering quantum the primary judge noted that precision is ordinarily neither necessary nor possible and that an amount assessed for security is not ordinarily intended as a pre-estimate of the actual amount of party/party costs. 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 primary judge then considered the broad description of the work required and the estimates provided by AAC in relation to such work and came to a figure just under $100,000 from which he deducted $10,000 for costs which may be incurred in respect of the counterclaim. The primary judge concluded:
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.
We see no error on the part of the primary judge in proceeding in the manner described in the reasons for decision notwithstanding the lack of any express reference to quantum when determining the threshold issue.
The discretionary stage
It was submitted on behalf of Sparks that there were a number of factors which should have militated against the exercise of the discretion to make an order that it pay security for costs. In making those submissions, Sparks acknowledged that the way an appeal against an exercise of discretion should be determined is governed by the principles found in House v The King. To succeed on an appeal against the exercise of the discretion, Sparks must establish that the primary judge fell into material error in the making of a finding of fact upon which the decision was based, in taking into account irrelevant considerations, in not taking into account material factors or in some other matter of principle. If no specific error can be established, error may only be inferred if the decision is “unreasonable or plainly unjust”. Sparks relied on several matters in support of its assertion of error of that type.
First, Sparks submitted that by the time of the application for security for costs an “unexplained” delay of 10 months had passed from the commencement of proceedings, pleadings had closed, a summary judgment application had been heard and determined, the mediation had been held and the mediation agreement “purportedly” performed. Sparks submitted further that the primary judge erred in concluding that the claim by the second plaintiff, Leonard Pratt, provided a partial explanation for the delay. The reasons for decision refer to that matter and note that the defamation proceedings were “linked to allegations made against (AAC)”, however this was largely a matter of narrative and context. There was no exposition by Sparks of whether, or if so how, that contextual discussion contributed to error in the findings regarding delay.
In dealing with the question of delay the primary judge referred to the history of the proceedings and noted that, following the unsuccessful summary judgment application and the successful mediation, the original claims were “abandoned” (in the sense of not being pleaded or pursued) and replaced with a new claim seeking damages for breach of the terms of the Deed or for deceptive and misleading conduct contrary to the Australian Consumer Law. The primary judge observed that although the security for costs application was made late in the “original” proceeding, it was relatively early in what was referred to as the “new” proceeding and at a time when AAC maintained the conduct of Sparks first reasonably gave rise to suspicions as to its financial circumstances.
There were additional matters which supported the conclusion reached in relation to the question of delay. The initial proceedings were commenced in February 2024. Once proceedings had been commenced there was activity relating to the pleadings followed by an application for summary judgment which was made in March 2024, 13 April 2024 and not determined by dismissal until May 2024. Shortly thereafter the matter was referred for mediation which was conducted in mid-July 2024 and initially considered to be successful. The equipment was delivered in accordance with that resolution in September 2024 and it was not until 30 September 2024 that Sparks advised AAC that the condition of the equipment was unacceptable and it would be suing on the deed of settlement. In addition to those matters, the information concerning Sparks’s tax default did not become publicly available until May 2024, which coincided with the dismissal of the summary judgment application and the referral to mediation. Given that progression of events, it was explicable and not unreasonable for AAC to await the outcome of both the summary judgment application and the mediation before considering the need for an application for security for costs. That the latter process had failed was not apparent to AAC until the beginning of October 2024.
This was not a case in which the application for security for costs gave rise to prejudice to the plaintiff because it interrupted late-stage trial preparation[10], and nor was it an application made at a point in time where the greater portion of the costs of the proceedings had already been incurred[11]. The substantive hearing was not imminent. On the other hand, it was a case in which AAC only became aware, and only had cause to become aware, of Sparks’s potential impecuniosity later in the proceedings[12], and in which the length and future conduct of the proceedings was not foreseen at the time the parties were engaged in the mediation process prior to its failure[13]. It is accepted that participation in an alternative dispute resolution process may have a bearing on the timing of an application for security for costs[14], as will circumstances in which the parties are engaged in “intense activity” in relation to the initial pleading process and an application for summary judgment[15]. There was also no suggestion in this case that Sparks would not have gone ahead with the proceedings if the application for security for costs had been brought at an earlier stage.[16]
Having regard to those principles, the primary judge accepted the explanation for the delay proffered by AAC and concluded it was not a determinative factor weighing against the application.[17] In so concluding it is apparent that the primary judge had in mind the evidence provided to the Court of the information acquired from the Creditor Watch database which resulted from an enquiry by AAC when its suspicions were raised by the dealings in relation to the generator in November 2024. They were relevant considerations in the exercise of the discretion. Contrary to the submission made on behalf of Sparks, the delay was explained and the explanation accepted by the Court. No error has been made in the fact-finding exercise in that respect, the primary judge did not act upon a wrong principle, and the conclusion concerning delay is not itself unreasonable or plainly unjust.
The second assertion of error made by Sparks in relation to the exercise of the discretion is that the primary judge failed to address or give weight to the suggestion that AAC had adequate security in the form of the equipment which had been returned to Sparks. There are two difficulties with that submission. The first is that evidence of the value of the equipment or any representation in relation to that value was not admitted into evidence before the primary judge and there has been no appeal from that aspect of the proceedings. The second is that the basis of the “new” claim is that the equipment was “worth substantially less” than any estimated value discussed during the mediation and its value is either unknown or solely within the knowledge of Sparks. Indeed, during the hearing of this appeal it was submitted that the case for Sparks at trial would be that the property has no present value.
These were matters adverted to by the primary judge in the reasons for decision.[18] In discussing the value of the equipment returned, the primary judge noted the claim by Sparks that there had been a misleading or deceptive misrepresentation made during the mediation that the equipment was worth $363,000. That recognises Sparks’s position in the litigation that the equipment is not worth that amount, and the claim for damages reflects that position. The primary judge noted further that the defence filed by AAC in the proceedings does not admit that the equipment is worth $363,000, or that it is worth anything at all. The primary judge noted further that at least some of the property had subsequently been sold. The primary judge concluded that he was unable to find that the assets were worth $363,000 or that any value in the property would be maintained until after trial. No error has been made in the fact-finding exercise in that respect, the primary judge did not act upon a wrong principle, and the conclusion concerning the value of the equipment is not unreasonable or plainly unjust. In fact, it would arguably have been in error to attribute value to the equipment given the present state of the pleadings and evidence.
The third assertion of error made by Sparks in relation to the exercise of the discretion is that the primary judge accorded undue weight to the proximity of trial. It was submitted that the primary judge proceeded on the basis that this issue was the primary consideration in the exercise of the discretion, when the proper approach was to consider the proximity of the trial in the context of the delay in making the application. The relevance and significance of that matter has already been dealt with in the context of delay. In any event, the primary judge’s only reference to that consideration was that he was “not persuaded that this matter is so close to trial that security for costs should not be ordered”.[19] That observation was made after the primary judge had canvassed and dealt with the other discretionary factors militating in favour of and against the making of an order for security for costs, including delay. That was a final consideration, and the primary judge’s reference to the matter did not purport to give that issue primacy and was not in error.
The fourth assertion of error made by Sparks in relation to the exercise of the discretion is that the primary judge erred in concluding that the merits of Sparks’s case were “somewhat neutral”. What the primary judge found in that respect was that although much will turn on evidence and argument in the substantive proceedings, he was prepared to accept that Sparks’s case was bona fide and reasonably arguable.[20] As AAC submitted on appeal, when considering applications of this type courts do not descend into the merits of the parties’ respective cases unless there is a very high probability of success or failure. Otherwise, the prospect of success or failure is of little relevance. In this case the claim was not said to be frivolous or the defence doomed to failure, and nor could it be said that either was certain to succeed. In those circumstances, the primary judge was quite correct to find that the strength of the case was a neutral factor in the exercise of the discretion.[21]
The fifth assertion of error made by Sparks in relation to the exercise of the discretion is that the order made was oppressive. It had been submitted to the primary judge that security in any amount would be oppressive because it would require Sparks to sell equipment or assets which would then seriously hinder its ability to earn income. This was not supported by direct evidence from Sparks and such evidence as was provided was insufficient to support such a claim. The primary judge found that to determine whether an order for security would “hinder” Sparks’s performance of contracts and ability to generate income which could be applied to prosecuting the proceeding the Court would need to assess evidence of Sparks’s financial and contractual situation. That was not possible in the absence of evidence to that effect. Similarly, there was a paucity of evidence concerning the value of its assets and liabilities.[22] There was no error in drawing those conclusions or taking those matters into account in determining whether Sparks had established that an order for security would stultify proceedings.
The sixth and final assertion of error made by Sparks in relation to the exercise of the discretion is that the primary judge gave undue weight to the absence of evidence from those who stand behind Sparks as to their financial circumstances. Reference to the reasons for decision reveals that the primary judge relevantly observed that Sparks had failed to fully and promptly provide information regarding its financial circumstances, and then observed that there was no evidence of the willingness of those standing behind the company, who would benefit from the litigation, to provide security.[23] This consideration was not decisive in the exercise of the discretion. Rather, it was directed to the sufficiency of Sparks’s assets and whether any impecuniosity on its part was due to the actions of AAC, and that was one matter, amongst others, leading to the conclusion that an order for security should be made in the exercise of the discretion. The reasons do not support the suggestion that undue weight was given to this factor. Just as it was open to the court to draw inferences from the insufficiency evidence concerning Sparks’s financial position in determining whether the threshold had been met, that consideration was also relevant to the exercise of the discretion.
Quantum stage
The final challenge to the primary judge’s determination is that the amount awarded for security was for the full amount of the estimated recoverable party/party costs without the usual deductions for contingencies and other factors. The principles to be applied in assessing the quantum of any order for security for costs have already been described above in dealing with the challenge to the primary judge’s determination at the threshold stage. Any analysis of this contention must start with the fact that the claim for security was in the sum of $201,243.50 and the ultimate allowance was for a sum of $90,000. The reasons of the primary judge fully expose the process involved in reaching that reduced figure. The primary judge conducted a section-by-section analysis of the skeleton estimate of costs which had been submitted by the solicitors for AAC and made reductions where the estimate was “ambitious”, “excessive”, “speculative” or “inflated” to reflect what the estimate would be on a conservative party/party basis. That figure was then discounted by a further $10,000 for costs which might be incurred in the prosecution of AAC’s counterclaim.[24]
This was not, as Sparks submitted, a process akin to taxation, but rather a broadbrush and transparent analysis directed to determining an adequate amount for security having regard to the nature of the claim, which was “neither illusory nor oppressive”. In reaching that figure, the primary judge noted that “I am not obliged to fix an amount reflective of the full estimated costs and that I can have regard to contingencies”. [25] However, no further discount was allowed for the prospect of settlement given the history of the matter and the unsuccessful mediation process which had already taken place. Any appropriate allowance for contingencies and vicissitudes must be made having regard to the history and circumstances of the matter, rather than by the application of some fixed or customary percentage. The approach to the assessment of quantum adopted by the primary judge cannot be said to be erroneous in any relevant sense, or to be unjust or unreasonable. It is of some significance in that respect that the figure reached by that process is not dissimilar from the estimate provided by Sparks in relation to its future legal costs.
Disposition
The application for leave to appeal is granted and the appeal is dismissed. We will hear the parties in relation to costs and the appropriate form of security if need be.
_______________________
[1]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24.
[2]Mannix Electrical Pty Ltd v Belport Pty Ltd (2019) 134 SASR 438 at [36]-[37]; citing Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301.
[3]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [13].
[4]See affidavit of Alison Phillis, 16 December 2024, Annexure G.
[5]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [11]-[14].
[6]DGR Global Ltd v PT Limited [2025] QCA 122 at [60].
[7]Cf Rimhart Nominees Pty Ltd v Glenent Pty Ltd [2009] SASC 267 at [28].
[8]See, for example, Drumdurno Pty Ltd v Braham (1982) 42 ALR 563 at 570-571. See also Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [21]-[22] in relation to whether the plaintiff's impecuniosity could be attributed to the actions of the defendant.
[9] Anchung Pty Ltd v Northern Territory of Australia [2015] NTSC 76 at [34]-[35].
[10] Attorney-General (Botswana) v Aussie Diamond Products Pty Ltd [2009] WASC 299 at [15].
[11] Arnold v Queensland (1987) 73 ALR 607 at 614.
[12] Bailey v Beagle Management Pty Ltd (2001) 182 ALR 264 at [33]-[34]; Beluga Developments Pty Ltd v Sobel Investments Pty Ltd [2010] VSC 303 at [12].
[13] Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 303 at 308.
[14] Hydrocool Pty Ltd v Hepburn (No 2) [2010] FCA 285 at [28].
[15] Octocane Pty Ltd v SRJ Property Development Pty Ltd [1999] SASC 231 at [51].
[16] See, for example, Green v CGU Insurance Ltd (2008) 67 ACSR 105 at [57].
[17]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [15]-[16].
[18]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [18].
[19]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [23].
[20]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [23].
[21]See, for example, Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276 at [83]-[84].
[22]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [20]-[21].
[23]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [22].
[24]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [28]-[32].
[25]Sparks NT Pty Ltd v Angkerle Aboriginal Corporation [2025] NTSC 24 at [33].
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