Infocus Tax and Business Advisory Pty Ltd v Andrews (No 3) [2021] NSWSC 481

Supreme Court New South Wales

Medium Neutral Citation: Infocus Tax and Business Advisory Pty Ltd v Andrews (No 3) [2021] NSWSC 481 Hearing dates: 17 March 2021 Decision date: 06 May 2021 Jurisdiction: Equity Before: Robb J Decision: See pars [124], [149]-[150], [153], [159]-[162] Catchwords: CIVIL PROCEDURE — Separate determination of questions— Where the application for an order for the determination of separate questions is no longer pressed by the relevant applicants — Where no order is made — No point of principle COSTS — Security for costs — Procedure and discretion — Where the defendants seek security for costs — Where the plaintiffs admit impecuniosity — Where the plaintiffs claimed that they are part of a solvent group of companies the holding company of which has the financial resources to meet any costs order made against the plaintiffs in favour of the defendants — Where the plaintiffs claimed that no order for security for costs should be made in the circumstances — Where the Court held that the available financial accounts of the holding company cast sufficient doubt on its financial viability to require that the plaintiffs provide security for the defendants' costs COSTS — Security for costs — Quantum and form — Where the plaintiffs challenged the quantum and form of the security sought by the defendants — Where the Court determined that security should be provided in the sum of 90% of the amounts claimed by the defendants — Where the plaintiffs' holding company had previously offered to provide security for costs in the form of a deed and personal undertakings by its directors to cause the holding company to perform its obligations under the deed — Where the plaintiffs' holding company was formerly precluded from providing security for costs on a conventional basis because it was in breach of a covenant owed to its bank under finance facilities — Where the provision of security for costs by deed imposed a degree of financial uncertainty on the availability of the security for costs — Where the plaintiffs' holding company is no longer inhibited by the breach of a banking covenant — Where it is determined that security for costs should be provided in the form of payment of money into court or the provision of a guarantee by an Australian authorised deposit-taking institution Legislation Cited: Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2000 (Cth) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 Henjo Investments Pty Limited v Collins-Marrickville Pty Limited (No 1) (1988) 39 FCR 546 Infocus Tax and Business Advisory Pty Ltd v Andrews [2020] NSWSC 168 Infocus Tax and Business Advisory Pty Ltd v Andrews (No 2) [2020] NSWSC 1072 Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd BC9103265 Trailer Trash Franchise Systems Pty Ltd v GM Fascia and Gutter Pty Ltd [2017] VSCA 293 Category: Procedural rulings Parties: Infocus Tax & Business Advisory Pty Ltd (first plaintiff / first respondent) Announcer Group Pty Ltd (second plaintiff / second respondent) Benjamin William John Andrews (first defendant / first applicant) Kimball John Andrews (second defendant / third applicant) Veni Vidi Vixi Pty Ltd as trustee for the Imperium Trust (third defendant / second applicant) Representation: Counsel: P Lonergan (first plaintiff / second plaintiff / first respondent / second respondent) D Krochmalik (first defendant / third defendant / first applicant / second applicant) K Petch (second defendant / third respondent)