Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation (No 5) [2024] NSWSC 714

Supreme Court New South Wales

Medium Neutral Citation: Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation (No 5) [2024] NSWSC 714 Hearing dates: 20 and 28 May 2024; further evidence 23 May 2024 and 3 June 2024; further submissions 24 May & 4 June 2024 Decision date: 13 June 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendant's application for further security for costs is refused Catchwords: COSTS – security for costs – where defendant seeks order that the plaintiff provide security for costs up to the conclusion of evidence – where plaintiff accepts that it will be unable to pay defendant's costs if ordered at final hearing – where plaintiff is a dormant operating company with sole purpose of prosecuting these proceedings – whether proceedings would be stultified if an order for security was made – where commercial litigation funding not available – where persons associated with directors and shareholders of plaintiff have entered litigation funding agreement pursuant to which they will share in any claims proceeds – whether such persons will or could reasonably be expected to provide any further funding – where individuals standing behind majority shareholders have proffered undertakings to pay defendant's costs in the event the plaintiff is ordered to pay defendant's costs – whether proffered undertakings have any value – whether proceedings involve a matter of public interest – whether application for security made promptly – security not ordered Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anderson v Canaccord Genuity Financial Ltd [2020] NSWSC 1852 Brown v King [2022] NSWCA 75 CBX2 Pty Ltd v National Australia Bank (No 2) [2015] NSWSC 1969 Chapel Road Pty Limited v Australian Securities Investments Commission (No 6) [2012] NSWSC 511 Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 Equity Access Limited v Westpac Banking Corporation [1989] FCA 520 Flip Out Thornton Pty Ltd v Flip Out - Trampoline Arena Franchises Pty Ltd [2023] NSWSC 1094 Grocon Group Holdings Pty Limited v Infrastructure NSW [2020] NSWSC 1194 ILC Group v Sydney Water Corporation [2014] NSWSC 1407 In the matter of Australasian Hail Network Pty Ltd [2020] NSWSC 44 Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 142 FLR 71; (1997) 18 WAR 306 Jazabas Pty Ltd v Haddad [2007] NSWCA 291 Li v State of New South Wales [2013] NSWCA 165 Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 LRSM Enterprise Pty Ltd v Zurich Australian Insurance Limited [2014] NSWCA 88 Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation (No 4) [2024] NSWSC 657 Smail v Burton; Re Insurance Associates Pty Ltd (in liquidation) [1975] VR 776 Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245 Zenith Corporation Australia Pty Ltd v Optus Mobile Pty Ltd [2020] NSWSC 1110 Category: Procedural rulings Parties: Metro Environmental Logistics Pty Ltd (Plaintiff/Respondent) Newcastle Port Corporation trading as Port Authority of New South Wales (Defendant/Applicant) Representation: Counsel: S T White SC / D Tynan (Plaintiff/Respondent) J A Hogan-Doran SC / A A Cameron (Defendant/Applicant)