Capital Securities XV Pty Ltd v Calleja (No 3) [2018] NSWSC 1501

Supreme Court New South Wales

Medium Neutral Citation: Capital Securities XV Pty Ltd v Calleja (No 3) [2018] NSWSC 1501 Hearing dates: 31 July 2018 Date of orders: 11 October 2018 Decision date: 11 October 2018 Jurisdiction: Common Law Before: Fagan J Decision: (1) Within 14 days the plaintiff is to provide security for the costs of the defendant in the amount of $80,000, by cash deposit or bank guarantee or in some other form acceptable to the Registrar.

(2) In the event of security not being provided in accordance with order 1 (a) the proceedings will thereafter be stayed unless and until such security is provided and (b) the defendant may apply any time after 15 February 2019 for the proceedings to be permanently stayed or struck out. Catchwords: COSTS – security for costs – relevant factors – impecuniosity – where plaintiff company has ceased trading – plaintiff company registered to manage portfolio of loans for calendar year 2015 only – whether plaintiff company would be unable to pay defendant's costs if ordered – other factors – whether delay in applying for security – orders for security for costs in amount of $80,000

COSTS – security for costs – quantum and form – quantum – where payment by plaintiff to credit of defendant's loan account with bank – alleged mistake of plaintiff as to whether payment authorised as part of a loan advance – security for costs offset by liability in restitution Legislation Cited: Contracts Review Act 1980 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 Capital Securities XV Pty Ltd v Calleja (No 2) [2018] NSWSC 1498 First Mortgage Managed Investments Pty Limited v Pittman [2014] NSWCA 110 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 87 Livingspring v Kliger Partners [2008] VSCA 93 Precious 1 Pty Ltd v Chamberlain Early Learning Centre Pty Ltd [2017] NSWCA 259 Prime Capital Securities Pty Ltd v Calleja [2017] NSWSC 1694 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 St George Bank Ltd v Trimarchi [2004] NSWCA 120 Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; [1995] HCA 14 Category: Procedural and other rulings Parties: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) (plaintiff/respondent) Elizabeth Ann Calleja (defendant/applicant) Representation: Counsel: Mr M W Young SC (plaintiff/respondent) Ms N Obrart (defendant/applicant)