Gispac Pty Ltd v Michael Hill Jeweller (Australia) Pty Ltd [2020] NSWSC 577

Supreme Court New South Wales

Medium Neutral Citation: Gispac Pty Ltd v Michael Hill Jeweller (Australia) Pty Ltd [2020] NSWSC 577 Hearing dates: 14 May 2020 Decision date: 15 May 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to r 42.21(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW) and s 1335(1) of the Corporations Act 2001 (Cth), order the plaintiff provide security for the further costs the defendant incurs in the proceedings from 13 March 2020 in the amount of $210,000. (2) Order the plaintiff, on or before 12 June 2020, to do one of the following: (a) pay the sum of $210,000 into Court; or (b) provide $210,000 as security for costs by way of an unconditional and irrevocable bank guarantee from an Australian owned bank in a form acceptable to the defendant. (3) If the plaintiff does not provide security within the time, and in the form, specified in order (2), stay the proceedings until such security is provided or until further order. (4) If the plaintiff has not provided the security set out in order (2) above by 31 July 2020, grant leave to the defendant to apply to strike out the proceedings. (5) Grant liberty to the defendant to apply on three days' notice to increase the amount of security if the security specified in order (1) proves to be insufficient to cover the party/party costs it incurs. (6) Order the plaintiff pay the defendant's costs of and incidental to this notice of motion. Catchwords: COSTS — Security for costs — Form of order

COSTS — Party/Party — Exceptions to general rule that costs follow the event — where no adjudication on the merits — whether defendant was almost certain to succeed on its motion Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6 Corporations Act 2001 (Cth), s 1335 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7 Cases Cited: Anderson v Patersons Securities Ltd [2019] NSWSC 852 Central Queensland Development Corporation Pty Ltd (formerly Bluechip Development Corporation Gladstone) Pty Ltd v BMT & Assoc Pty Ltd [2017] NSWSC 992 Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 Re Beechworth Land Estates Pty Ltd (Admin Apt) and Griffith Estates Pty Ltd (Admin Apt) (No 3) [2015] NSWSC 733; (2015) 298 FLR 233 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302 Category: Procedural and other rulings Parties: Gispac Pty Ltd ACN 081 934 278 (Plaintiff) Michael Hill Jeweller (Australia) Pty Ltd ACN 003 181 333 (Defendant) Representation: Counsel: D Sulan (Plaintiff) J Muir (Defendant)