Workplace Safety Australia Pty Ltd v Simple OHS Solutions Pty Ltd

In the matter of *Workplace Safety Australia Pty Ltd v Simple OHS Solutions Pty Ltd*, the Court of Appeal of New South Wales considered an application by the respondent, Simple OHS Solutions Pty Ltd, for security for its costs of the appeal pursuant to section 1335 of the *Corporations Act 2001* (Cth). The appellant, Workplace Safety Australia Pty Ltd, sought to resist this application.

The central legal issue before the Court was whether the appellant had demonstrated that an order for security for costs would stultify its appeal, and whether the appellant would be able to meet the respondent's costs if unsuccessful on appeal. This involved an assessment of the appellant's likely ability to pay costs, including consideration of its liability to pay the judgment debt from the primary proceedings.

Basten JA determined that the appellant had not shown that the security would stultify the appeal. The Court reasoned that the appellant's financial position, including its existing liability to pay the judgment debt, was a relevant factor in assessing its ability to meet the respondent's costs. Consequently, the Court ordered that Workplace Safety Australia Pty Ltd provide security for Simple OHS Solutions Pty Ltd's costs of the appeal in the amount of $40,000. The appellant was also prohibited from taking further steps in the proceedings until the security was provided, with an exception for matters relating to a stay of the judgment. The costs of the motion were to be the respondent's costs in the appeal.