Supreme Court New South Wales Medium Neutral Citation: Shelteo Pty Ltd v Australia and New Zealand Banking Group Limited [2021] NSWSC 224 Hearing dates: 01 March 2021 Date of orders: 01 March 2021 Decision date: 01 March 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The plaintiff is to pay security for costs as follows: (i)The plaintiff pay the sum of $50,000 into court on or before 29 March 2021. (ii) The plaintiff pay the sum of $75,000 into court on or before 2 July 2021. (iii) The plaintiff pay the sum of $75,000 into court on or before 1 November 2021. (iv) The plaintiff pay the sum of $50,000 into court on or before 1 February 2022. (2) Costs of the application for security for costs will be costs in the cause. (3) The plaintiff is granted leave to file the amended statement of claim within 7 days. (4) The costs of the plaintiff's motion seeking leave to amend will be costs in the cause. Catchwords: COSTS – security for costs – relevant factors – nature of the plaintiff – where statement of claim has been amended to substitute the plaintiff in the proceedings Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: All State Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187 Bryan E Fencott & Associate Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65 Green v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148 James, in the matter of Liquor National Pty Ltd (in liq) v Liquor National Pty Ltd (in liq) [2017] FCA 721 Les & Zelda Investments Pty Ltd v Whitehaven Coal Ltd [2020] NSWSC 1091 Louise Haselhurst v Toyota Motor Corporation Australia Limited trading as Toyota Australia [2020] NSWSC 1607 Norcast S.àr.L v Bradken Limited & Ors [2012] FCA 765 Voxson v Telstra Corporation Limited (No 8) [2017] FCA 1427 Category: Procedural rulings Parties: Shelteo Pty Ltd (Plaintiff) Australia and New Zealand Banking Group Limited (Defendant) Representation: Counsel: N Condylis (Plaintiff) R M Foreman with K E Boyd (Defendant) Solicitors: Allsop Glover Lawyers (Plaintiff) Allens (Defendant) File Number(s): 2019/255935 Publication restriction: None REVISED EX TEMPORE Judgment 1. Before the Court are two motions. By way of a motion filed on 16 October 2020, the plaintiff, Shelteo Pty Ltd, seeks an order that it be granted leave to file an amended statement of claim. 2. The second motion is a motion dated 19 October 2020, in which the defendants seek an order for security for costs. 3. Mr Condylis appears on behalf of the plaintiff and Mr Foreman SC appears with Ms Boyd for the defendants. 4. The defendants neither consent to nor oppose the orders sought in the plaintiff's motion. Having reviewed the proposed amended statement of claim, I am satisfied that leave should be granted to amend and I have made orders allowing the plaintiff to amend the statement of claim and an order for costs. 5. The second motion is more controversial. The defendants, through their solicitors, estimate that their costs of defending these proceedings would be in the order of $815,000 and that they would recover approximately $645,000 from the plaintiff should they be successful. 6. The plaintiff opposes any order for security for costs and says, in the alternative, that the amount claimed is excessive and that a significantly lower amount would be ordered. 7. The defendants rely on three affidavits of Przemyslaw Kucharski, dated 16 October 2020 and two separate affidavits dated 20 November 2020. The plaintiff relies on three affidavits of Richard Allsop, dated 13 August 2020, 16 October 2020 and 23 December 2020. Neither deponent was required for cross-examination. 8. Mr Kucharski is a managing associate employed at the solicitors for the defendant, Allens. Mr Allsop is a partner in the firm representing the plaintiff, Allsop Glover Lawyers. 9. Mr Kucharski is an experienced litigation solicitor who appears to be familiar with these types of matters and has an understanding of what this type of matter might cost his clients in the context of the firm at which he is working. Mr Allsop is a very well-known and experienced solicitor who has been in practice for over 40 years in the conduct of commercial litigation. 10. One of the difficulties in a matter such as this is that both solicitors appear to have the expertise to comment on matters related to costs. As such, despite Mr Allsop's well-known competence and additional experience, I would not necessarily prefer his opinion as to costs over Mr Kucharski merely because of his experience. I will comment further on their estimates in determining the outcome. Background 1. I received helpful written and oral submissions from both parties, as well as a four volume court book. The circumstances of the matter are as pleaded in the proposed amended statement of claim and conveniently summarised in the written submissions. 2. As identified by the plaintiff, the proceedings relate to events that took place around 2013 concerning wines and other assets of a number of different companies associated with the James Group of Companies. The plaintiff refers to the James Group of Companies as being 13 companies in which David James was involved. According to the plaintiff, these companies had funding facilities with various financial institutions, a number of which can be collectively called the ANZ companies. Further, some of the companies had secured facilities with Rabobank (the Rabobank companies). 3. The companies operated through various warehouses, particularly at Homebush Bay, Maryville and Broadmeadow. Various Rabobank companies stored stock at both the Homebush Bay and Maryville warehouses. 4. No defence has yet been filed and thus it is not clear to me exactly what is in dispute, but I doubt that the background to the matter is generally in dispute. 5. In August 2013 the first defendant appointed receivers and managers to ANZ. It is alleged that on 19 August 2013 the receivers entered various warehouses and removed stock from the warehouses even though the stock belonged to the Rabobank companies. It is also alleged that on the same day the receivers wrongfully removed computerised stock and business management systems on which the Rabobank companies were dependent. It is said that as a result of the conduct of the receivers, who are named as the second defendants, the Rabobank companies were not able to continue to operate or trade and went into liquidation. 6. On 21 June 2017, the Federal Court made orders deferring the deregistration of the Rabobank companies [1] . 7. In 2017, an application was made to the Federal Court for the appointment of a special purpose liquidator of the Rabobank companies so as to examine the company's affairs in particular relating to the conduct of the second defendants. 8. On 11 October 2017, orders were made for the appointment of the special purpose liquidator. 9. On 19 August 2019, the special purpose liquidator filed a statement of claim making allegations against the defendants, including that they: 1. Converted property belonging to the Rabobank companies; 2. Engaged in trespass by entering the premises without authorisation; 3. Wrongfully removed and crashed stock and business computer systems; and 4. Negligently removed goods and other items belonging to the ANZ companies. 1. It is alleged that, as a result of this conduct, a substantial loss has been sustained. 2. Orders were made in 2020 for extension of time for the service of the statement of claim and on 13 August 2020 the special purpose liquidator entered into a deed of assignment with the plaintiff assigning the causes of action to the plaintiff. That is, as set out in the amended statement of claim, the plaintiff seeks substantial damages from the defendants in conversion, trespass and negligence. 3. The defendants have not yet filed a defence. It seems likely that there will be a significant factual dispute as to what occurred and that there will be a dispute as to the nature and extent of any legal obligations imposed upon the receivers, whether there was any breach of duty and whether there was any conversion as alleged. 4. In the original statement of claim the losses were alleged to be in excess of $65 million, although the basis for this is not clear. 5. It is common ground that the plaintiff is a form of shelf company in the sense that it does not itself have assets sufficient to pay any order for security for costs. 6. Mr James is not a director of the plaintiff and the plaintiff played no role in anything that happened back in 2013 or indeed in 2017. Its involvement in these proceedings appears to be that it has taken an assignment from the special purpose liquidator for the purposes of pursuing these proceedings, presumably in the hope of making a return. No doubt against that background the defendants filed their application for security for costs prior to filing any defence. 7. I hasten to add that although the defendants did not oppose the filing of the amended statement of claim, Mr Foreman emphasised that he was not, in doing so, accepting the validity of the assignment, the basis of the claim or that, indeed, there was any merit at all in anything alleged. 8. As I said to the parties at the time, the defendants' position will no doubt be subject to proper pleading but merely not opposing the filing of an amended statement of claim does not of itself indicate some form of acceptance of any of the allegations in the statement of claim. Principles to be applied 1. Although the defendants do not nominate the basis on which security for costs might be ordered, r 42.21 of the Uniform Civil Procedure Rules (UCPR) provides for the payment of security for costs, as does s 1335 of the Corporations Act 2001 (Cth), and of course the Court has an inherent jurisdiction to make an order if it sees fit. 2. I have limited this consideration to r 42.21 of the UCPR, although the principles are essentially the same. 3. There is generally a two-step process in determining whether security for costs should be ordered. Firstly, a party seeking an order must establish the circumstances which give rise to a prima facie entitlement to an order for security for costs. The party seeking security must establish that there is a reason to believe that the other party, in this case, the plaintiff, will be unable to pay the costs of the defendant if the defendant is successful [2] . In the context of r 42.21 of the UCPR, the prima facie entitlement may be established with reference to one of the matters set out in r 42.21. 4. As set out in r 42.21(1), there are six matters which might give rise to a prima facie entitlement issue. 5. In this matter, there are two relevant circumstances (d) and (e), being that (d) there is reason to believe that the plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so and (e), that a plaintiff is suing not for his or her own benefit but for the benefit of some other person who has reason to believe the plaintiff will be unable to pay the costs of the defendant if ordered to do so. The defendants have satisfied the threshold issue. 6. Once the threshold question has been satisfied, there is an evidentiary onus on the part of the opposing party to establish why security should not be ordered [3] . 7. The Court has a general discretion as to whether it will order security for costs. The matters that are particularly relevant as to whether security should be ordered are set out in r 42.21(1A) and include the plaintiff's prospects of success, whether the proceedings are genuine and bona fide and, in particular, whether the defendant might be responsible for any impecuniosity from which the plaintiff suffers. The Court is obviously concerned that a security for costs application is not used for the purposes of in some way nullifying or stifling the proceedings. 8. Whilst the plaintiff points to a number of reasons why security for costs should not be ordered in this matter, the plaintiff does not submit that any order for security for costs would render the proceedings nugatory or have the effect of bringing the proceedings to an end. I asked counsel for the plaintiff on more than one occasion whether that submission was being made and, appropriately, having regard to the evidence, he did not make that submission. 9. In Green v CGU Insurance Ltd [4] , Hodgson JA, with whom Campbell JA agreed, said at [51]: "However, in my opinion a court should be readier to order security for costs where the non-party who stands to benefit from the proceedings is not a person interested in having rights vindicated, as would be a shareholder or creditor of a plaintiff corporation, but rather is a person whose interest is solely to make a commercial profit from funding the litigation …" 1. His Honour's observations are particularly relevant to the application for security for costs in this matter, as the plaintiff is a shelf company with no prior interest in the subject matter of the proceedings. 2. The party seeking the order for security must establish through admissible evidence the amount of security which it is appropriate to order. This may be done either through estimates given by appropriately qualified solicitors involved in the case or through an expert costs assessor [5] . 3. Use of an expert costs assessor would add to the actual costs of the application but might on one view provide a more balanced opinion. However, having regard to ethical obligations imposed upon solicitors involved in this type of litigation, the Court is entitled to expect that estimates given by solicitors will be well considered and accurate as far as possible. However, it is again important to emphasise that these types of applications are often made at the outset of the proceedings and they are only estimates, based on what might need to be done in the future. 4. Further, it seems to me that a defendant estimating what its costs might be for the purposes of such an application might not be conservative, although Mr Kucharski says he has taken a conservative approach. Similarly, a plaintiff such as Mr Allsop estimating the defendants' costs would be unlikely to be generous. 5. I am not making a finding about either of the solicitors involved in this matter but, as a matter of common sense, that could occur. This is why the Court may bring to bear its own experience in assessing what the appropriate figure is [6] . This is particularly so in circumstances in which estimates are offered at an early stage of the proceedings and estimates are based on hourly rates, the number of hours it might take, for example, to draft a defence and the number of solicitors who, for example, might need to attend court and instruct counsel. 6. Next, in determining an appropriate amount by way of security, the function of the Court is not to ensure that the party seeking security is fully indemnified in respect of all costs that it might recover [7] . Regard must be had to the amount of costs that might be recovered from the other party as that is really the amount for which security should be sought but any amount must be fair and reasonable. In this matter, the defendants have provided an estimate of their actual costs and their recoverable costs. 7. Although the plaintiff urged upon me the adoption of the so-called two-thirds discount rule, I do not consider there is any such rule which is binding upon me. Again, it may be that that is a rule or principle which has been applied in English cases [8] , but I do not consider that there is any rule which requires me to reduce the amount which might be ordered by way of security on some fixed percentage basis, particularly two-thirds [9] . 8. That is not to say that there will never be circumstances in which it would not be appropriate to discount by two-thirds. For example, in Norcast [10] , Gordon J suggested that the two-thirds rule may be applied where there are factors present which suggest that the quantum of security ought to be further discounted. Those factors include the chances of settlement, the merits of the case, whether an order would effectively deny the applicant from pursuing the claim, the strength of the evidence and the possibility that substantial amounts may be taxed off the bill. As her Honour said, a number of cases have indicated the discount to be applied is not fixed at two-thirds but may vary as circumstances dictate. 9. In Norcast a 50 per cent discount was applied. On my analysis of the cases, discounts vary considerably. 10. Whether or not there should be a discount is a matter of discretion for the Court having regard to all the facts and circumstances. There is no fixed rule on whether and how much a discount there might be but there will often be circumstances in which a discount will be applied. 11. Further, the approach to ordering security for costs in circumstances in which the Court is satisfied that there should be an order but there is no agreement between the parties, and indeed where there is a substantial disagreement between the parties, is best summarised by Sackar J in Louise Haselhurst v Toyota Motor Corporation Australia Limited trading as Toyota Australia [11] at [13]–[16] as follows: "13. Rather the Court embarks on a process of estimation which embodies to a considerable extent, necessary reliance on the 'feel' of the case after considering relevant factors (see, e.g., Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 515 (French J)) 14. Whilst the Court requires some evidentiary basis for the estimate of costs, a precise estimate is not required. The Court is not fixing a gross sum amount, and should not decline to act on the evidence before it because the evidence was not the 'best evidence' available to support the application (Pathway Investments Pty Ltd & Anor v National Australia Bank Limited [2012] VSC 97 at [35]-[38]; DIF III Global CoInvestment Fund LP v BBLP LLC [2015] VSC 484). Although a discount for exigencies may be required (see, e.g., Pathway Investments Pty Ltd & Anor v National Australia Bank Limited [2012] VSC 97 at [55]). 15. Further the Court is to stand back from the amounts claimed and the precise assessment of costs to consider the case on its particular facts and will make an order that is just and reasonable in the circumstances (Wollongong City Council v FPM Constructions Pty Ltd [2004] NSWSC 523 at [50]). 16. In embarking on such a process the Court is not required to attempt its own detailed costs assessment but can take a 'broad brush' approach having regard to the information before it, seeking to prevent (on the one hand) prejudice to the party paying costs by overestimating the costs and (on the other hand) injustice to the party recovering costs by adopting an arbitrary "fail safe" discount across the board on the costs claimed (see, e.g., Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 134 ALR 187 at 199–201; Ashington Capital Pty Ltd v Parissen Capital (Project X) Pty Ltd [2012] NSWSC 410 at [17]–[18]; Pathway Investments Pty Ltd & Anor v National Australia Bank Limited [2012] VSC 97 at [25])." Position of the parties 1. The defendants submit that I would be well satisfied that it is appropriate to make an order for security for costs. The defendants submit that the threshold question has been established and that there are no discretionary factors which would mitigate against an order for security for costs in the particular circumstances that I have outlined. 2. The defendants submit in particular that this is a large and complex matter in which a decision has been taken that Shelteo Pty Ltd will be the plaintiff and, in circumstances in which that company has really no involvement in anything that has gone on in the past and seemingly has no assets, it is appropriate that a costs order should be made. 3. The plaintiff points to a number of reasons why security for costs should not be ordered, including as follows: 1. Firstly, the plaintiff says that it has a genuine, arguable and bona fide case with good prospects of success. In those circumstances, and in the circumstances in which the defendants are seeking a disproportionately excessive amount for costs, the Court should not order security for costs; 2. Secondly, the plaintiff submits that it does not stand to retain the full benefit of the net proceeds from the proceedings and that would be a reason why costs should not be ordered, or, alternatively, they should be reduced; 3. Thirdly, the plaintiff submits that the Rabobank companies' impecuniosity is attributable to the defendants' conduct; and 4. Fourthly, the plaintiff submits that the security is disproportionate to the nature and complexity of the proceedings. 1. I am not in a position at this stage to determine which party might have the better of the argument. Based on the pleadings, the plaintiff has an arguable case. It is not suggested to the contrary, but in circumstances in which the defendants have not even filed defences I could hardly make a decision based on some inference that the plaintiff is likely to succeed. 2. Further, whilst it may be that, as asserted, the Rabobank companies' impecuniosity is attributable to the defendants' conduct, it does not seem to me that would provide a sufficient basis for declining an order for security for costs against this plaintiff. 3. It seems to me that in real and practical terms, the strength of the plaintiff's argument relates to the amount of the order rather than whether any order should be made. 4. Having regard to the relationship between the parties, the position and nature of the plaintiff and the nature of the allegations raised in the statement of claim, as well as the absence of any evidence that an order would have the effect of defeating the proceedings, I am satisfied that an order for security for costs should be made. 5. The next issue becomes the amount of the costs. Considerable time was devoted to that issue on the hearing of the matter. 6. Mr Condylis helpfully provided a schedule annexed to his written submissions setting out the competing position of the parties Item of work Defendant's estimate Plaintiff's estimate Difference Tranche 1 (payable 28 days from the date of the Court's orders) Work undertaken $39,284.16 $0 $39.284.16 Plaintiff's application and the defendants' application $26,520 $17,430 $9,090 Finalising pleadings $85,910 $25,160 $64,750 Tranche 2 (payable 7 days from orders setting final hearing) Discovery $68,100 $15,000 $53,100 Attending to subpoenas $17,295 $2,880 $14,415 Considering plaintiff's evidence in chief $30,400 $25,000 $5,000 Obtaining lay evidence $198,300 $87,240 $111,060 Expert evidence $71,275 $64,835 $6,440 Considering plaintiff's reply evidence $13,568 $11,270 $2,298 Tranche 3 (payable 28 days from the date of final hearing) Preparing for trial $112,880 $61,100 $51,780 Attending trial $127,160 $76,100 $51,060 Additional costs $25,000 $10,000 $15,000 Total Actual: $815,692.16 Actual: $396,015 Actual: $446,677.16 Recoverable: $644,819,56 Recoverable: $271,396.90 Recoverable: $373,422.66 1. The competing positions of the parties is based on the estimates of Mr Kucharski and Mr Allsop. 2. The estimate of the defendants is a total sum of $815,692.16 with an amount likely to be recoverable from the plaintiff of $644,819.56. 3. Mr Allsop's estimate is $396,015 with an amount recoverable likely to be $271,396.90. The parties are $450,000 apart in their estimates as to the likely costs that the defendants will be incurring. It is perhaps difficult to understand how there could be such a difference. 4. The defendant's estimate is based on a detailed analysis undertaken by Mr Kucharski on a stage–by–stage basis. As I indicated to Mr Foreman, I do have some concern as to the amount of Mr Kucharski's estimate. Whilst the reason for his estimate is set out in his affidavit, and the hourly rates are set out in the affidavit, I am entitled to bring to bear my own experience perhaps in particular in matters in the Common Law Division. 5. Concerns I have as identified to the defendants include that it would cost the defendants $85,910 to finalise the pleadings in circumstances in which the sum of $39,000 has already been incurred. 6. Mr Foreman says there will need to be considerable investigation into the factual allegations contained in the amended statement of claim. That may be so but when I read the amended statement of claim, having regard to the evidence which is already before the Court for the purposes of this application, quite a number of the factual allegations are unlikely to be in dispute. 7. Further, there are quite a number of paragraphs dealing with issues such as the nature of the duty of care, foreseeability, the risk of harm, obviousness of the risk, and these sort of matters which an experienced pleader would be able to plead to without too much difficulty. 8. The nub of the investigation probably relates to the conduct of the receivers in terms of what they did and when they did it. Be that as it may, Mr Kucharski's estimate has four solicitors, one paralegal, senior and junior counsel working on the defence. Ms Boyd, a competent and experienced counsel, will apparently need to spend five days settling the defence in company with solicitors who would have spent 170 hours in finalising the pleadings. 9. Further, Mr Kucharski estimates a further sum of $198,300 on account of obtaining lay evidence. No doubt there will be some significant work involved but I would have thought that much of the time spent in obtaining instructions for the defence will be relevant to preparing the evidence. 10. Mr Kucharski estimates that after finalisation of evidence the defendants will incur the sum of approximately $112,000 in preparing for trial which seemingly has a five day estimate (although I am not certain about that). That again involves solicitors and paralegals spending in total 125 hours, and senior and junior counsel spending a total of 15 days. 11. Finally, at the hearing, Mr Kucharski estimates that the partner will spend 40 hours, he will spend 40 hours, another solicitor will spend 40 hours, and then there will be some work by a junior solicitor and paralegal. I am not sure that it is reasonable to expect the plaintiff to pay for both a partner and such a senior solicitor as Mr Kucharski to be sitting in court instructing counsel of the calibre of Mr Foreman and Ms Boyd in a manner in which, to say the least, there has already been extensive preparation on Mr Kucharski's estimate. 12. Mr Allsop has undertaken an analysis of all these fees and comes up with completely different numbers. It is not necessary that I undertake some comparative analysis of Mr Allsop's and Mr Kucharski's estimates. 13. There is merit in much of what Mr Allsop says although, of course, he is not the solicitor for the defendants, and his perspective could only be as the solicitor for the plaintiff forming a view as to what might be necessary having regard to the case that he is pursuing on behalf of his client against the defendants. 14. As has occasionally been said [12] , parties are entitled to retain such lawyers as they think fit and believe are necessary having regard to the nature of the case. No doubt the defendants are aware of the reputation of a firm such as Allens, and nothing I say should be a criticism in any way of that firm, the way they do their work or the fees they charge, but I am not convinced that all of the work that Mr Kucharski refers to will be necessary or should be brought to account by way of an order for security for costs. It is thus necessary that I adopt a broad brush approach having regard to what is fair and reasonable in all the circumstances. 15. Mr Condylis, in well prepared submissions, says I should disregard much of what Mr Kucharski says for four reasons. Firstly, the partner in charge has not adduced evidence and Mr Kucharski is not the most experienced solicitor on the case. I reject that submission. Mr Kucharski is quite able to provide an estimate. 16. Secondly, he says there was no indication that Mr Kucharski has experience in costs consulting. Again, I reject that submission. He is an experienced solicitor. 17. Thirdly, he says that the methodology is flawed. There is no real breakdown of how the sums are calculated and essentially what work might be necessary. There is merit in that submission, although it must be remembered that it is only an estimate of matters going forward. 18. Fourthly, Mr Condylis submits that the costs agreement between the defendants and the solicitors is not the subject of evidence, and that there is no supporting documentation corroborating that which is asserted. Again, I suppose that the costs agreement might have been the subject of evidence but I would only draw an inference that it would not make the defendants' case any better as opposed to any finding that it says something completely different. 19. The plaintiff's real submission is that the costs are not properly justified and, on a fair and reasonable approach to the likely costs of this type of matter, they are excessive. In particular, the plaintiff submits that at least some of the work might have already been attended to in Federal Court proceedings and there is likely to be some duplication. 20. I am not sure there will be any duplication, but it does seem likely that those representing the defendants are not starting from scratch. They are well aware of the nature of this matter and the background to it. 21. Further, the plaintiff submits that it is not certain that there will be discovery, and that much of the source documentation will be obtained by way of subpoenas. Again, it may be difficult to form an absolute view about that at this stage, but having regard to the practice in the Commercial List which I may adopt for the purposes of management of this matter, it may be that discovery is unnecessary. The defendants suggest they will be expending $68,000 on discovery. 22. The plaintiff submits that the proper approach to this task is to adopt the estimates of Mr Allsop and then apply what is said to be the two-thirds rule. 23. As I have already indicated, I do not accept that there is a two-thirds rule but I accept that it is appropriate to apply some discount having regard to firstly the prospects that the matter may resolve in due course; secondly, the prospects that the issues might be narrowed; and thirdly, the benefit of tight case management. In this regard, I intend allocating a hearing date immediately although it will be next year. 24. Further, I accept the submission of Mr Condylis that, whilst the defendants are entitled to have what might be viewed as a Rolls Royce type of service if they choose to, it is not fair and reasonable for such a service to be visited upon the plaintiff. 25. That leaves me to assess what is fair and reasonable in all the circumstances having regard to the overall (competing) costs estimates, the concerns I have expressed as to the basis of the estimates offered by the defendants and having regard in particular to my own experience in these sorts of matters. 26. I should say that experience includes hearing a conversion, trespass and negligence case involving allegations of removal of goods which involved a number of witnesses and proceeded over a period of at least five days. 27. In my view, the appropriate order should be in the sum of $250,000. 28. That amount must be paid over four tranches. The plaintiff must pay the sum of $50,000 within 28 days of today's date. 29. I order that: 1. The plaintiff pay the sum of $50,000 into court on or before 29 March 2021. 2. The plaintiff pay the sum of $75,000 into court on or before 2 July 2021. 3. The plaintiff pay the sum of $75,000 into court on or before 1 November 2021. 4. The plaintiff pay the sum of $50,000 into court on or before 1 February 2022. 5. Costs of the application for security for costs will be costs in the cause. 6. The plaintiff is granted leave to file the amended statement of claim within 7 days; 7. The costs of the plaintiff's motion seeking leave to amend will be costs in the cause. ********** Endnotes 1. James, in the matter of Liquor National Pty Ltd (in liq) v Liquor National Pty Ltd (in liq) [2017] FCA 721. 2. Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; [2014] NSWCA 65 at [15]-[17] (Macfarlan JA), [59] (Ward JA), [60] (Tobias AJA). 3. (2014) 98 ACSR 301; [2014] NSWCA 65 at [18]–[20] (Macfarlan JA, Ward JA and Tobias AJA agreeing). 4. Green v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148 at [51]. 5. Norcast S.àr.L v Bradken Limited & Ors [2012] FCA 765 (per Gordon J at [17]–[18]). 6. Bryan E Fencott & Associate Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 515 (per French J). 7. Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 at 175 per Fullagar J; Norcast at [24]. 8. See for example, the comments of Lindgren J in All State Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187 at 197. 9. See Norcast at [25]; Les & Zelda Investments Pty Ltd v Whitehaven Coal Ltd [2020] NSWSC 1091 (Parker J at [77]). 10. See Norcast at [28]. 11. [2020] NSWSC 1607. 12. Voxson v Telstra Corporation Limited (No 8) [2017] FCA 1427 per Perram J at [16]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2021