United Commercial Projects Pty Ltd v PHHH Investments No 2 Pty Ltd

United Commercial Projects Pty Ltd, the plaintiff, brought an action against PHHH Investments No 2 Pty Ltd, the defendant, over a dispute concerning a commercial contract. The plaintiff sought an order for security of costs, a common request in cases where the defendant might be unable to pay any awarded costs if the plaintiff were to lose the case. The defendant opposed the application on the grounds of significant delay in making the application and absence of evidence of prejudice. The matter was heard in the Supreme Court of New South Wales.

The court was required to decide whether the delay in making the application for security of costs was significant enough to warrant refusal of the application. The defendant argued that the delay had prejudiced them, but they failed to provide any evidence to support this claim. The plaintiff contended that the delay was not significant and did not prejudice the defendant, and that the absence of evidence of prejudice should not be fatal to the application. The court had to balance the need for timely application of security of costs with the defendant's right to a fair hearing.

The court considered the decision in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, where it was held that the significance of delay in making an application for security of costs should be assessed in light of the absence of evidence of prejudice. The court found that the delay in this case was not significant enough to warrant refusal of the application. The absence of evidence of prejudice meant that the delay did not adversely affect the defendant's ability to prepare a defence. The court granted the plaintiff's application for security of costs.

The court ordered the defendant to provide security for the plaintiff's costs of the proceedings in the sum of $50,000. The defendant was given 28 days from the date of the judgment to provide the security. The plaintiff was also awarded its costs of the application.