Otta International Pty Limited v Asia Pacific Carbon Pte Ltd [2017] NSWSC 780

Supreme Court New South Wales

Medium Neutral Citation: Otta International Pty Limited v Asia Pacific Carbon Pte Ltd [2017] NSWSC 780 Hearing dates: 8 June 2017 Decision date: 08 June 2017 Jurisdiction: Common Law Before: Adamson J Decision: 1. Dismiss the notices of motion filed in court by the third and fourth defendants on 8 June 2017.

2. Order the third and fourth defendants to pay the plaintiff's costs of the notices of motion, if any. Catchwords: PRACTICE AND PROCEDURE – SECURITY FOR COSTS – jurisdictional basis not established as evidence to the effect that the plaintiff could pay an adverse costs order – motions dismissed Legislation Cited: Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW) r 42.21 Category: Procedural and other rulings Parties: Otta International Pty Limited (Plaintiff) Asia Pacific Carbon Pte Ltd (First Defendant) Asia Pacific Carbon Pty Ltd (Second Defendant) Peter Kane (Third Defendant) Julie Kane (Fourth Defendant) Representation: T Terei (Director of Plaintiff company, by leave) Third and Fourth Defendants appeared in person

Solicitors: English Law (Plaintiff) File Number(s): 2015/220270

Judgment: EX TEMPORE

Introduction 1. The third and fourth defendants (Mr and Mrs Kane) have applied for an order for security for costs against the plaintiff.

The Court's power to order security for costs 1. There are two bases on which the Court could order security for costs. The first is under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.21(1)(d): namely, that there is reason to believe that a plaintiff being a corporation will be unable to pay the costs of the defendant if ordered to do so. The other basis for this Court's jurisdiction to order security for costs is s 1335 of the Corporations Act 2001 (Cth) which provides: "Where a corporation is a plaintiff in any action or other legal proceedings the Court having jurisdiction in the matter may if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, requires sufficient security to be given for those costs and stay all proceedings until the security is given."