Worldwide Australia LLC v Jacobsen Platinum Pty Limited & Ors [2005] NSWSC 846

New South Wales Supreme Court

CITATION : Worldwide Australia LLC v Jacobsen Platinum Pty Limited & Ors [2005] NSWSC 846

HEARING DATE(S) : 23/08/05

JUDGMENT DATE : 24 August 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : Einstein J

DECISION : Security for costs ordered

CATCHWORDS : Security for costs - External plaintiff

Energy Drilling Inc v Petroz NL (1989) ATPR 40-954 CASES CITED : Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321

Worldwide Australia LLC (Plaintiff) Jacobsen Platinum Pty Limited (First Defendant) Kevin George Jacobsen (Second Defendant) Time of my Life Pty Limited (ACN 107 898 966) (Third Defendant) Dirty Dancing Investments Pty Limited (ACN 110 875 600) (Fourth Defendant) PARTIES : Dirty Dancing Asia Pacific Pty Limited (ACN 110 687 628) (Fifth Defendant) Jacobsen Entertainment Limited (ACN 100 000 244) (Sixth Defendant) Amber Lucy Jacobsen (Seventh Defendant) Michael Aaron Jacobsen (Eighth Defendant) Jacobsen - Jack Utsick Pty Limited (ACN 107 433 296) (Ninth Defendant)

FILE NUMBER(S) : SC 50183/04

Mr Andronos (Plaintiff) COUNSEL : Ms Sofroniou (Defendants)

Piper Alderman (Plaintiff) SOLICITORS : Atanaskovic Hartnell (Defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Wednesday 24 August 2005

50183/04 WORLDWIDE AUSTRALIA LLC v JACOBSEN PLATINUM PTY LIMITED & Ors JUDGMENT The notice of motion 1 There is before the court an amended notice of motion pursuant to which the first to eighth defendants seek security for costs. 2 There are two only areas of discourse for examination: · The first concerns the fact that the plaintiff is a company incorporated in Delaware, USA. The issues which arise are whether any assets within this jurisdiction have been identified with sufficient precision to outflank the usual rule that a plaintiff ordinarily resident out of the State, must pay security for costs unless it has assets within the State of sufficient magnitude to be taken into account · The second concerns the principled exercise of the discretion in terms of amounts and occasions for payment of security in separate tranches External plaintiff - the principles 3 There is no real issue as to these principles. The following authorities identify the proper approach: · "[t]he purpose of ordering security for costs against an applicant ordinarily resident outside the jurisdiction is to ensure that a successful respondent will have a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement". Energy Drilling Inc v Petroz NL (1989) ATPR 40-954 at 50,422 per Gummow J