Australian Worldwide Pty Ltd v AW Exports Pty Ltd [2018] NSWSC 1632

Supreme Court New South Wales

Medium Neutral Citation: Australian Worldwide Pty Ltd v AW Exports Pty Ltd [2018] NSWSC 1632 Hearing dates: 5 October 2018; further written submissions ending 22 October 2018 Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Equity - Corporations List Before: Parker J Decision: See [85] Catchwords: PRACTICE AND PROCEDURE – applications – security for costs order – Corporations Act 2001 (Cth), s 1335(1) – whether reason to believe company will be unable to pay costs – company in liquidation – relevance of indemnity agreement to the threshold jurisdictional question of whether "the corporation will be unable to pay the costs of the defendant" – evidentiary onus on party resisting security for costs order to show indemnity agreement is sufficient to meet adverse cost order

PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – whether defendant caused the plaintiff's impecuniosity – cause of impecuniosity where claim is based on loss of profits

PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – delay – effect of delay in bringing a security for costs application where the proceedings are funded under a litigation funding agreement

EVIDENCE – opinion evidence – expert opinion evidence – solicitor's estimate of future costs to be incurred in proceedings – admissibility

PRACTICE AND PROCEDURE – applications – security for costs order – quantum of security – estimating costs where there is uncertainty in the conduct of proceedings – discretion of the Court to order security be furnished in tranches – discretion of Court to make an order granting leave to apply to adjust quantum of security to reflect the actual level of expenditure on costs Legislation Cited: Civil Procedure Act 2005 (NSW), s 60 Companies Act 1936 (NSW), s 360 Corporations Act 2001 (Cth), ss 1317H, 1335 Evidence Act 1995 (NSW), s 79 Uniform Civil Procedure Rules 2005 (NSW), r 42.21 Cases Cited: Churchills Ltd v Pilcher (1940) 57 WN (NSW) 109 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd (2000) 22 WAR 241; [2000] WASCA 69 Harpur v Ariadne Australia Ltd (No 2) [1984] 2 Qd R 523; (1984) 8 ACLR 835 Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276; [2007] NSWCA 291 Kupang Resources Ltd v Elias [2018] NSWSC 1553 Laundry Coin-Wash Nominees Pty Ltd v Dunlop Olympic Ltd (1985) ATPR ¶40-584 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Northampton Coal, Iron and Waggon Co v Midland Wagon Co (1878) 7 Ch D 500 Rhema Ventures Pty Ltd v Stenders [1993] 2 Qd R 326 at 332-333 Rickard Constructions Pty Ltd v Allianz Australia Insurance Ltd [2002] NSWSC 1162 Woolworths Ltd v About Life Pty Ltd (No 2) [2018] NSWSC 1340 Category: Procedural and other rulings Parties: Mozammil Bhojani (Applicant/Third Defendant) Australian Worldwide Pty Ltd (First Respondent/First Plaintiff) Australian Worldwide Exports Pty Ltd (Second Respondent/Second Plaintiff) Representation: Counsel: B DeBuse (Applicant/Third Defendant) BK Nolan (First and Second Respondents/First and Second Plaintiffs)