Resilium Pty Ltd v Nest Insurance Consult Pty Ltd (No 2) [2021] NSWSC 1019

Supreme Court New South Wales

Medium Neutral Citation: Resilium Pty Ltd v Nest Insurance Consult Pty Ltd (No 2) [2021] NSWSC 1019 Hearing dates: On the papers Decision date: 13 August 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Security to be provided in tranches as set out at [15]; cross-claimant to pay the cross-defendants' costs of their application for security costs; directions made for future conduct of proceedings Catchwords: COSTS – security for costs – tranches which security to be provided – costs of application for security for costs Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Resilium Pty Ltd v Nest Insurance Consult Pty Ltd [2021] NSWSC 974 Category: Procedural rulings Parties: Resilium Pty Ltd (Plaintiff/Second Cross-Defendant/Applicant) Resilium Insurance Broking Pty Ltd (First Cross-Defendant/Applicant) Nest Insurance Consult Pty Ltd (Defendant/Cross-Claimant/Respondent) Representation: Counsel: M R Elliot SC with D K Ratnam (Plaintiff/Cross-Defendants/Applicants) S Gray (Defendant/Cross-Claimant/Respondent)

Solicitors: Roberts & Partners Lawyers Pty Ltd (Plaintiff/Cross-Defendants/Applicants) Cite Legal Pty Ltd (Defendant/Cross-Claimant/Respondent) File Number(s): 2020/356006

Judgment 1. On 5 August 2021 I published my reasons for ordering that the cross-claimant provide security for the costs of the cross-claim. [1] I shall use the same abbreviations here. 2. I ordered that Nest provide for the Resilium Parties' costs of Nest's cross-claim in the sum of $400,000. 3. I noted that the parties had suggested that, if security were to be ordered, it would be open to the Court to order that it be ordered in stages. 4. I have now received competing submissions as to what those stages should be. 5. The stages proposed by the Resilium Parties are said to be justified by a further Affidavit made by Mr Roberts and, in any event, appear to me to be reasonable. 6. As to the costs of the Resilium Parties' Motion, it was submitted on behalf of Nest that although the Resilium Parties should have their costs to 13 July 2021, Nest should have its costs, and on an indemnity basis, from that date. 7. Nest points to an offer it made on 13 July 2021 to provide security by way of a bank guarantee in the sum of $169,000 as security for the Resilium Parties' costs up to and including service of evidence and attending a mediation. 8. I do not propose to make the costs order proposed by Nest for a number of reasons. 9. The first is that the offer of $169,000 is less than the figure of $180,000 that I propose to allow as costs of the proceedings up to service of evidence and attending a mediation. 10. Second, the quantum of security that I have ordered is less than the Resilium Parties offered prior to the hearing ($390,000 for the entire proceedings and $235,000 for certain stages). 11. Third, and in any event, Nest has been unsuccessful on the motion. It opposed the making of any order for security for costs. In that context, I cannot see how the offer it made could possibly affect the Resilium Parties' entitlement to costs, let alone provide a basis for ordering indemnity costs against the Resilium Parties. 12. The Resilium Parties also sought liberty to apply to strike out the cross-claim if security was not provided in accordance with the orders I propose to make, and for liberty to apply for further security should the current orders prove inadequate. I see no reason to make those orders. The Resilium Parties can, by notice of motion in the usual way, make such application as they consider necessary. 13. Nest proposes further orders providing for the ongoing conduct of the matter. The Resilium Parties submitted that it is not appropriate for those orders to be made where "security is yet to be provided". 14. But the orders proposed by Nest take effect only once security is provided. 15. In those circumstances I make orders and directions as follows: