Westpac Banking Corporation v Ninan [No 3]

Westpac Banking Corporation v Ninan [No 3] involved a dispute between the plaintiff, Westpac Banking Corporation, and the defendants, Mr and Mrs Ninan. The defendants, who were resident outside Australia, had counterclaimed against the plaintiff's claim for security for costs. The case was heard in the Supreme Court of Western Australia, where the primary issue was the appropriate order in which to deal with the application for security for costs and the application for discovery by the defendants. A secondary issue was whether the defendants' counterclaim was strong enough to warrant the court declining to order security for costs.

The court considered the principles governing the granting of security for costs, noting that the discretion to order such security is broad and depends on all relevant circumstances. The court had to weigh the strength of the plaintiff's claim, the availability of assets within the jurisdiction, and the likelihood of enforcement of any costs order against the defendants. Additionally, the court considered the defendants' impecuniosity and whether the application for security was being used as a tactic to prevent them from litigating their counterclaim. The court determined that the application for security for costs should be dealt with before the application for discovery, as previously decided in Westpac Banking Corporation v Ninan [No 2] [2015] WASC 315.

Ultimately, the court found that the plaintiff's claim had a reasonable prospect of success, and the defendants' counterclaim was not strong enough to warrant declining the application for security for costs. The court noted that the defendants were impecunious, and the application for security was not oppressive but rather a legitimate consideration given their financial situation and residency outside Australia. The court ordered the defendants to provide security for costs as a condition of proceeding with their counterclaim.