Les & Zelda Investments Pty Ltd (ACN 148 907 573) as Trustee for Les & Zelda Family Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 741

Supreme Court New South Wales

Medium Neutral Citation: Les & Zelda Investments Pty Ltd (ACN 148 907 573) as Trustee for Les & Zelda Family Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 741 Hearing dates: 12 May 2022 Decision date: 08 June 2022 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) Vacate orders (1) and (2) of the orders made by the Court on 19 November 2020; (2) Order that the plaintiff provide, by way of bank guarantee or by payment into Court, further security for the defendant's costs in the amount of $850,000 in respect of costs billed to the defendant up to and including 31 March 2022; (3) The proceedings be stayed if order (2) is not complied with within 28 days of the date of these orders until such time as the security is provided; (4) Grant liberty to the defendant to apply for further security in respect of costs billed after 31 March 2022. (5) Order that the plaintiff pay the defendant's costs of the notice of motion filed on 17 November 2021. Catchwords: COSTS — Security for costs — Quantum and form — Where antecedent orders made for security to be given in tranches — Applicant seeks additional security to "top-up" amounts ordered by reference to past costs actually incurred Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Legal Profession Uniform Law (NSW) Cases Cited: Allsop Investments Pty Ltd v Jerkovic [2021] NSWSC 1399 Broadway Plaza Investments v Broadway Plaza Pty Ltd [2019] NSWSC 1082 Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171 Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; [1987] FCA 102 Devenish v Jewel Food Stores Pty Ltd [1990] HCA 35; (1990) 64 ALJR 533 Les & Zelda Investments Pty Ltd v Whitehaven Coal Ltd [2020] NSWSC 1091 McLaughlin v Daily Telegraph Newspaper Co Ltd (No 1) [1904] HCA 5; (1904) 1 CLR 143 Precise Training Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 1202 Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169 Voxson Pty Ltd v Telstra Corporation Ltd (No 8) [2017] FCA 1427 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 Texts Cited: GE Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) Category: Procedural rulings Parties: Whitehaven Coal Limited (Applicant | Defendant) Les & Zelda Investments Pty Ltd (ACN 148 907 573) as Trustee for Les & Zelda Family Trust (Respondent | Plaintiff) Representation: Counsel: E Collins SC with I Ahmed (Applicant | Defendant) R Foreman SC with B O'Connor (Respondent | Plaintiff)