CBX2 Pty Limited v National Australia Bank (No 2) [2015] NSWSC 1969

Supreme Court New South Wales

Medium Neutral Citation: CBX2 Pty Limited v National Australia Bank (No 2) [2015] NSWSC 1969 Hearing dates: 15 December 2015 Date of orders: 16 December 2015 Decision date: 15 December 2015 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Appeal allowed. Set aside order of Associate Justice and order plaintiff to provide security for defendant's costs. Catchwords: PRACTICE AND PROCEDURE – interlocutory application – security for costs – three discretionary factors – first, whether the making of an order for security for costs would stultify the proceedings – second, whether the defendant is the cause of the plaintiff's impecuniosity – where absence of full and frank disclosure again precludes that finding – where decline in financial resources of plaintiff in any event not apparently related to any actions on the bank, on the available evidence – third, the financial position of plaintiff's director and shareholder who stands to benefit from any success it enjoys in the litigation – failure by the plaintiff to make full and frank disclosure – where plaintiff has onus of proof – resulting impossibility of being satisfied of any of the three discretionary factors in the plaintiff's favour – result that security for costs should be given – quantum – evidence of costs experts Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Idoport Pty Ltd v National Australia Bank [2001] NSWSC 744 Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Nonox Australia v Certain Underwriters at Lloyds [2014] NSWSC 221 Unified Pty Ltd v Cancer Council of Western Australia Inc (No 3) [2011] WASC 161 Category: Procedural and other rulings Parties: CBX2 Pty Limited (Plaintiff) National Australia Bank Limited (Defendant) Representation: Counsel: A J McQuillen (Respondent) P D Reynolds (Appellant)