Gispac Pty Ltd v Michael Hill Jeweller (Australia) Pty Ltd [2020] NSWSC 577 (15 May 2020)

Last Updated: 15 May 2020

Supreme Court New South Wales

Case Name:	Gispac Pty Ltd v Michael Hill Jeweller (Australia) Pty Ltd
Medium Neutral Citation:	[2020] NSWSC 577
Hearing Date(s):	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) Solicitors: Bridges Lawyers (Plaintiff) Otto Martiens Lawyers (Defendant)
File Number(s):	2019/187098

JUDGMENT

Introduction

1. By notice of motion filed on 13 March 2020, Michael Hill Jeweller (Australia) Pty Ltd (the defendant) sought security for costs from that date in an amount of $210,000 from Gispac Pty Ltd (the plaintiff).
2. On 13 May 2020, the day before the hearing of the motion, the plaintiff consented to provide security in an amount of $210,000 (having indicated its agreement to the amount by letter dated 4 May 2020). I was informed that the only issues between the parties were the form of the security and costs.
3. In summary, the defendant, for whom Ms Muir appeared, contended that the security should be in the form of “an unconditional and irrevocable bank guarantee from an Australian owned bank in a form acceptable to the defendant” and that the plaintiff should pay the defendant’s costs of the motion. The plaintiff, for whom Mr Sulan appeared, contended that security ought be provided “by way of unconditional bank guarantee from an Australian bank in favour of the defendant” and that the costs of the motion ought be costs in the cause.

The facts

4. In order to determine the question of costs it is necessary to summarise the procedural history of the matter.
5. The statement of claim was filed on 17 June 2019. A defence was filed on 15 July 2019. On 5 August 2019 the Registrar made orders by consent, including that the parties engage in a mediation by 15 November 2019. On 11 November 2019 the parties engaged in an unsuccessful mediation.
6. On 28 November 2019 the defendant’s solicitor, Mr Hinckfuss, wrote to the plaintiff’s solicitors to foreshadow an application for security for costs. He said, of present relevance:

“1.4 Our client is therefore currently considering an application for security for costs against your client.
1.5 It appears from searches undertaken on behalf of our client that your client does not own any real property. Our client has been unable to otherwise ascertain your client’s assets and liabilities position.
1.6 In order to allow our client the opportunity to consider whether it should apply for security for costs, please ensure that your client provides copies of the following documents to us by close of business on Friday 13 December 2019:

(a) statements of all bank accounts, term deposit accounts and investment accounts containing money held for the benefit of your client at any time from 17 June 2019 to date;
(b) all documents demonstrating your client’s assets and liabilities (including but not limited to asset registers) and financial statements (audited, if available) at any time from 1 July 2018 to date;
(c) evidence of any property or assets owned by your client and information on whether any such assets are the subject of an encumbrance, mortgage, or charge (and if so, in what amounts); and
(d) any other document that evidences your client’s ability to meet payment of our client’s costs if so ordered.

1.7 Please also tell us, by close of business on Friday 13 December 2019, whether your client’s sole director/secretary, Mr Edwin Bogatez, is willing to provide our client with a personal undertaking in relation to the payment of its costs, should our client obtain a costs order in its favour.
1.8 If your client is unwilling or unable to provide the above documents within the timeframe specified above:

(a) our client will take this as evidence of your client’s inability or incapacity to meet any costs order in our client’s favour; and
(b) we will take instructions with respect to a notice of motion seeking an order for security for costs against your client.”

7. The matter was listed for directions before the Registrar on 29 November 2019. On that day, directions were made for an amended statement of claim to be filed by 14 February 2020. The defendant foreshadowed that it would seek security for costs and was directed to file any notice of motion seeking security for costs by 13 March 2020. Directions were made for the filing and service of affidavits and submissions relating to security for costs.
8. No response was forthcoming to Mr Hinckfuss’s letter seeking documents from the plaintiff by 13 December 2019 (the date specified in the letter of 28 November 2019). On 16 December 2019, the defendant’s solicitors emailed the plaintiff’s solicitors and said, of present relevance:

“We requested a response to our letter by last Friday, 13 December 2019. We did not receive a response from you.
Could you please tell us by urgent return whether your client requires more time to gather and provide the requested documents to our client and, if so, how much longer your client requires.
Otherwise, our client will proceed on the basis that:
1. your client has refused, and will continue to refuse, to provide our client with the requested documents; and
2. Mr Bogatez has refused, and will continue to refuse, to provide our client with the requested undertaking.”

9. By email sent on 18 December 2019, the plaintiff’s solicitors said that the plaintiff’s sole director was overseas and unable to provide instructions or documents. The email said:

“We will provide you with a response to the Letter in due course when our client returns from overseas.”

10. The defendant’s solicitors responded by email dated 19 December 2019 as follows:

“Your client received our client’s Letter (using your definition) on 28 November, prior to the last directions hearing. At the directions hearing on 29 November, the Court made an order that our client file an[d] serve any application for security for costs by Friday 13 March 2020.
Your below email fails to inform us when your client’s Mr Bogatez departed overseas, and when he is expected to return. Presumably Mr Bogatez is able to access telephone and internet services while he is away. Our client does not accept Mr Bogatez’s temporary absence from Australia to be a sufficient enough reason for your client to fail to respond, and continue to fail to respond, to our Letter.
Your client’s draft amended statement of claim is, pursuant to the Court’s orders, due to be provided to us by tomorrow. We expect that you will be obtaining Mr Bogatez’s instructions in relation to that draft before it is provided to us. In those circumstances, we require your office to obtain instructions in relation to our Letter at the same time, if you have not done so already.
If our client does not receive a substantive response to its Letter by 4pm on Wednesday 8 January 2020 (Brisbane time), our client will proceed on the basis that:
1. your client has refused, and will continue to refuse, to provide our client with the requested documents; and
2. Mr Bogatez has refused, and will continue to refuse, to provide our client with the requested undertaking (to be clear, the terms of any acceptable undertaking from Mr Bogatez will involve the payment of an agreed sum of money by Mr Bogatez into Court).
Our client is keen to ensure that the parties avoid a situation where our client makes a security for costs application in the absence of receiving the requested material from your client, only for your client to provide such material in its responsive affidavit material prior to hearing, or shortly prior to/during a hearing. Such scenarios will result in wasted costs being incurred by both of our clients. If such circumstances do arise, we put your client on notice that our client intends to seek an order that your client pay our client's costs thrown away by such conduct.
We look forward to your client’s substantive response to our Letter, and copies of all of the requested documents, by 4pm on Wednesday 8 January 2020 (Brisbane time).”

11. The plaintiff’s solicitors responded by email on 20 December 2019 as follows:

“We note that the director of our client will not return to Australia until late January 2020. In circumstances where:
1. the Christmas break will result in most offices being closed from 20 December 2019 and re-opening on 6 January 2020;
2. our client is overseas and, as indicated in our below correspondence, unable to provide documents; and
3. your client’s security for costs application is not due to be filed until 13 March 2020,
it is not clear to our office why your client requires more than two months to consider and prepare any necessary application for security for costs.
We reiterate that we will provide a response to the Letter when the director of our client returns from overseas.”

12. No substantive response to the defendant’s solicitor’s request for documents was forthcoming. On 10 February 2020 the defendant’s solicitors again wrote to the plaintiff’s solicitors. They said:

“I refer to the below chain of emails, including your advice on 20 December 2019 that:
1. your client’s sole director, Mr Bogatez, would be returning to Australia in ‘late January 2020; and
2. your client would provide a response when Mr Bogatez returned from overseas.
It is now 10 February 2020. Mr Bogatez has we assume been back in the country for some two weeks. Our client has been waiting for a response to our letter dated 28 November 2019. Your client continues to fail and/or refuse to provide a response to that letter. It is wholly unreasonable for your client to continue to fail and/or refuse to provide a substantive response to that letter.
Our client requires a substantive response to its letter by no later than 4pm on Friday 14 February 2020 (Brisbane time). If such a response is not received by that time, our client will proceed on the basis that:
1. your client has refused, and will continue to refuse, to provide our client with the requested documents; and
2. Mr Bogatez has refused, and will continue to refuse, to provide our client with an acceptable undertaking.
We will not revert to your office again before filing an application.”

13. The due date for the filing of the amended statement of claim, 14 February 2020, came and went. No such document has yet been filed.
14. On 18 February 2020, the plaintiff’s solicitors wrote to the defendant’s solicitors and made various statements about the plaintiff’s financial position, which were preceded by the words, “we are instructed to advise as follows”. No supporting documents were provided. The letter further said:

“Accordingly, our client’s net asset position as at 31 December 2019 totals in excess of $4,500,000.00. Without non-current receivables, our client’s net asset position was in excess of $2,200,000.00.
Accordingly, our client is able to meet any cost order that may be made in your client’s favour.
We are also instructed that in the circumstances, our client’s sole director/secretary, Mr Bogatez, will not be providing any personal undertaking in relation to the payment of costs of the Proceedings.
In our view, your client’s consideration of a security for costs application is merely a delaying tactic.
We note that pursuant to the Court’s timetable, your client is to file any notice of motion for security for costs as against our client by 13 March 2020.”

15. On 13 March 2020 the defendant filed its motion for security for costs from that date together with two affidavits in support: the first sworn by Mr Hinckfuss and the second, sworn by John Bartos, a cost assessor. Mr Bartos expressed the opinion in his affidavit that he “would regard $210,000 as being [a] fair, reasonable and proportionate estimate of future legal costs on an ordinary party/party basis”.
16. On 16 March 2020 the defendant served a notice to produce on the plaintiff seeking financial documents, including bank statements and tax returns. The documents sought in the notice corresponded with those that had been sought in Mr Hinckfuss’s letter of 28 November 2019 referred to above. The return date on the notice to produce was 31 March 2020. I understood it to be common ground that the notice was not called on.
17. Notwithstanding the direction made on 29 November 2019, the plaintiff failed to file any evidence in opposition to the notice of motion by 27 March 2020 and failed to file its submissions by 10 April 2020.
18. In accordance with the directions made on 29 November 2019 the defendant filed written submissions in support of the motion on 3 April 2020, to which the notice to produce referred to above was annexed.
19. The matter came before the Registrar for directions on 14 April 2020. Ms Griffiths, who appeared for the plaintiff on that day, sought a date convenient to (unnamed) counsel who had been briefed. Ms Griffiths foreshadowed that the plaintiff might have to adduce evidence of the valuation of its business. On that date, the notice of motion was listed for hearing on 14 May 2020 with an estimate of three hours. The time within which the plaintiff was to file evidence in opposition to the notice of motion was extended to 28 April 2020. Consequential extensions were made to the directions regarding evidence in reply and the plaintiff’s written submissions.
20. The plaintiff failed to comply with the direction that it file evidence in opposition to the notice of motion by 28 April 2020 or its submissions by 7 May 2020. It remained in default of the direction made on 29 November 2019 that it file an amended statement of claim by 14 February 2020.
21. On 4 May 2020, the plaintiff’s solicitors wrote to the defendant’s solicitors and maintained that no response to their letter of 18 February 2020 had been received. They contended that, by reason of its client’s asset position, it “can clearly meet any adverse costs order made against it”. The letter continued:

“...
Our client maintains that your client has failed to establish that our client is unable to pay any adverse costs order if your client was ultimately successful in the Proceedings. As you have failed to establish this preliminary question, the burden of proof in relation to our client's ability to pay any adverse cost order remains with your client.
On a purely commercial basis and in support of our client’s position, our client is prepared to provide security for costs in the sum of $210,000, by way of a bank guarantee in favour of your client. The Application can then be dismissed with no order as to costs.
At no time prior to your client filing the Application, did your client:
i) advise following the issue of our letter dated 18 February 2020 that it intended to file its Application.
ii) indicate the amount your client was seeking by way of security for costs from our client.
In such circumstances, your client would not be entitled to costs of the Notice of Motion.
This is an open offer that will be relied upon at any hearing of the Application.”

22. On 6 May 2020, the defendant’s solicitors responded seeking details about the bank guarantee which had been offered. They also inquired about the costs of the notice of motion. The letter continued:

“...
2.1 In accordance with the Court order made on 14 April 2020 in this matter, Gispac’s submissions are due tomorrow. We look forward to receiving that document to enable the Court Book to be finalised.
2.2 Gispac has had ample opportunity to provide detail on its financial position and has refused to do so. Details set out by your firm on your letterhead as to Gispac’s financial position has never been acceptable and remains unacceptable.
2.3 Your assertions relating to notice of our client’s application for security for costs are also rejected. The court order dated 29 November 2019 and the affidavit of Luke Hinckfuss filed on 13 March 2020 set out the chronology in respect of events culminating in the application for security for costs.”

23. On 11 May 2020 the plaintiff’s solicitors responded and provided details of the bank guarantee proposed. It set out the orders it proposed as follows:

“1) The Plaintiff provide security for costs of the Defendant in the sum of $210,000.00 on or before 1 June 2020 by way of unconditional bank guarantee in favour of the Defendant.
2) The Defendant agrees it will only call upon the bank guarantee provided by the Plaintiff at the conclusion of the proceedings and if the Plaintiff has an obligation to pay the Defendant's costs, once agreed or assessed.
3) In default of compliance with Order 1, the Statement of Claim filed by the Plaintiff on 17 June 2019 be stayed as against the Defendant pursuant to section 67 of the Civil Procedure Act 2005 (NSW).
4) The notice of motion dated 13 March 2020 be otherwise dismissed with no order as to costs.
Our client will be relying on this letter in respect of costs.”

24. On 13 May 2020, the defendant’s solicitors provided an alternative set of orders (which correspond with the prayers in its notice of motion), which provided as follows:

“1 The Plaintiff provide security for the further costs the Defendant incurs in the proceedings from 13 March 2020 in the amount of $210,000, pursuant to rule 42.21(1)(d) Uniform Civil Procedure Rules 2005 (NSW) (UCPR), or alternatively, section 1335(1) Corporations Act 2001 (Cth), or alternatively, in the Court’s inherent jurisdiction.
2 Within 28 days of the date on which Order 1 is made, the Plaintiff either pay the sum of $210,000 into Court, or provide that amount 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, the proceedings are stayed until it provides such security.
4 The Defendant have liberty to apply on three days’ notice for to increase the amount of security ordered in Order 1 if the security provided proves insufficient to cover the party/party costs it incurs.
5 The Plaintiff pay the Defendant’s costs of and incidental to this notice of motion as agreed or assessed.”

25. By email sent by Mr Sulan to my Associate at 6.30pm on 13 May 2020, the plaintiff sent a further proposed set of orders as follows:

“1. The Plaintiff provide security for costs of the Defendant in the sum of $210,000.00 on or before 1 June 2020 by way of unconditional bank guarantee from an Australian Bank in favour of the Defendant.
2. In default of compliance with Order 1, the Statement of Claim filed by the Plaintiff on 17 June 2019 be stayed as against the Defendant pursuant to section 67 of the Civil Procedure Act 2005 (NSW).
3. The costs of the notice of motion dated 13 March 2020 be costs in the cause.
4. Liberty to the Defendant to apply on 3 days’ notice to raise any issue it has with the form of the unconditional bank guarantee provided in accordance with order 1.
Notation
The Defendant notes that it is only permitted to call upon the bank guarantee referred to in order 1:
a. at the conclusion of the proceedings in the event that the Plaintiff is ordered to pay the Defendant’s costs; and
b. once such costs have been agreed or assessed.”

Consideration

26. There are two issues: the form of the security and what order ought be made as to costs. I propose to address the form of the security first.

The form of the security

27. There was an issue between the parties as to the form of the bank guarantee. The conventional way of determining such an issue is to provide for payment into court or the provision of a bank guarantee in a form acceptable to the defendant. This is preferable to this Court engaging in a debate in the abstract about a bank guarantee when no such bank guarantee has actually been obtained and the plaintiff will be given time to obtain one in order to comply with the order for security. The plaintiff now accepts that the bank guarantee ought be unconditional and from an Australian bank. It seeks a notation on the order as set out in its draft orders above as to the circumstances in which the bank guarantee can be called upon.
28. I understood that the parties wished me to determine some issues about the bank guarantee in order to avoid further litigation. Ms Muir submitted that the bank guarantee ought either have no expiry date or have an expiry date not earlier than 14 May 2025. Mr Sulan submitted that a bank guarantee for a period of five years was more than was required to protect the defendant, that being the purpose of an order for security for costs. Ms Muir submitted that it could not be assumed the litigation would be over a period significantly shorter than five years. She referred to the progress, such as it has been, in the proceedings since the statement of claim was filed almost a year ago on 17 June 2019 and referred to the several occasions on which the plaintiff has failed to comply with directions made by the Court. I do not regard the period of five years as unreasonable. Indeed, having regard to the progress of the matter to date, the period would appear to be reasonable in the circumstances. A bank guarantee of insufficient duration would not protect the defendant since it cannot be assumed that the plaintiff would be able to obtain a bank guarantee at a future date.
29. Mr Sulan submitted that it was necessary to have a notation such as was set out in the plaintiff’s draft, to ensure that the bank guarantee was not called upon for any reason other than to meet a costs order. I am not persuaded that such a notation is necessary. The sole purpose of the provision of the bank guarantee is to secure the defendant’s right to have its costs paid if a costs order is made by the court in its favour. Commonly such orders are payable at the conclusion of the proceedings although the Court also has power to order costs to be paid forthwith. The defendant can be taken to be well aware of the basis on which the bank guarantee is to be provided and the purpose for which it may be used.
30. The orders proposed by the plaintiff make provision for liberty for the defendant to apply if it has an issue with the form of the bank guarantee provided by the plaintiff. I am not persuaded that this is either necessary or appropriate. The onus is on the plaintiff to provide a bank guarantee in a form acceptable to the defendant: see, for example, Anderson v Patersons Securities Ltd [2019] NSWSC 852 at [220] (Ward CJ in Eq). The defendant has already indicated what it would be prepared to accept, by way of amount, duration, institution and that it be both irrevocable and unconditional. Each requirement sought by the defendant is unremarkable and orthodox.
31. For these reasons I propose to make orders substantially in the form of the orders for which the defendant contended.

Costs

32. Mr Sulan contended that the costs of the motion ought be costs in the cause on the basis that the defendant had not specified an amount of security before filing the notice of motion. In the alternative, he submitted that the defendant ought have only its costs of the cause (such that the defendant would only be entitled to its costs of the notice of motion if it successfully defeated the plaintiff’s claim) or that the defendant ought only to have its costs up until 4 May 2020, being the date on which it offered to provide security in the sum sought.
33. Mr Sulan relied on the circumstance that the plaintiff’s solicitors had represented, in their letter of 18 February 2020, that the plaintiff had sufficient assets to meet an adverse costs order. He submitted that the offer on 4 May 2020 was made to “quell the security for costs issue” by offering the bank guarantee. He contended that the defendant had raised matters concerning the bank guarantee which “ought not be controversial”, such as its form. Mr Sulan argued that the defendant’s approach was not consistent with the efficient and cost effective disposition of the notice of motion.
34. Because the notice of motion was, in substance, resolved, which meant that it did not need to be determined, except as to matters of form, the principles outlined by the High Court in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625; [1997] HCA 6 (Lai Qin) apply. Generally speaking the general rule that costs follow the event in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1 does not apply where there has, as in the present case, been no adjudication on the merits. There are two exceptions to this general principle: first, where one of the parties has behaved so unreasonably that it is appropriate that that party ought pay the costs of the other party; and, secondly, where the Court is confident that, although both parties have acted reasonably, one party was almost certain to have been successful had the matter been litigated. Ms Muir relied on both bases in support of her contention that the plaintiff ought pay the defendant’s costs of the notice of motion.
35. I have set out the procedural history of the matter and the correspondence between the parties at some length above because it is necessary in order to assess the conduct of the parties with respect to the application for security for costs. This, in turn, is relevant to costs because of the provisions of Part 6 of the Civil Procedure Act 2005 (NSW).
36. I am satisfied, on the basis of the chronology set out above, that the plaintiff would not have agreed to security in the sum of $210,000 but for the defendant filing the notice of motion. The defendant foreshadowed the motion at an early stage, on 28 November 2019, on the eve of the first directions hearing following the failed mediation. It was reasonable for the defendant to wait until the mediation before making the application.
37. In the letter of 28 November 2019, the defendant’s solicitor requested documents from the plaintiff to ascertain its financial position with a view to determining whether an application for security for costs ought be made. This is an entirely orthodox approach for a defendant to take in proceedings where the plaintiff is a limited liability company: see, for example, a similar letter in Central Queensland Development Corporation Pty Ltd (formerly Bluechip Development Corporation Gladstone) Pty Ltd v BMT & Assoc Pty Ltd [2017] NSWSC 992 at [4] (Harrison J). These documents were never provided, although they were subsequently sought by a notice to produce. Throughout, the plaintiff maintained that its asset position was sufficient to meet an adverse costs order. However, it failed to provide a single business record to corroborate the assertions made on its behalf by its solicitors (who were bound to act on its instructions) and failed to respond to the defendant’s request to produce the documents. These failures are highly significant in the context of such an application: see Re Beechworth Land Estates Pty Ltd (Admin Apt) and Griffith Estates Pty Ltd (Admin Apt) (No 3) [2015] NSWSC 733; (2015) 298 FLR 233 at [113]- [114] (Robb J) and Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302 at [29] (Beazley ACJ). An unsubstantiated assertion of wealth provided no assurance to the defendant that the plaintiff would be able to meet an adverse costs order. When the matter came before the Court for directions on 14 April 2020, the plaintiff gave no hint that it was prepared to provide security or that it did not dispute the amount sought. To the contrary, it gave every indication that the matter would be fully contested and asked the Court to list the matter on the basis of the availability of the counsel whom it led the court to understand had been briefed.
38. At no stage prior to the letter of 4 May 2020 did the plaintiff offer to provide security for costs. Nor did the plaintiff’s solicitors engage with the defendant’s solicitors about an appropriate amount. The position of the plaintiff, until 4 May 2020, was that it was not obliged to provide security at all because of its strong financial position.
39. When the offer was made by the plaintiff on 4 May 2020, it was reasonable for the defendant to enquire as to the details of the bank guarantee. While bank guarantees are a commonly acceptable form of security for costs, the form of such guarantees is not unimportant. Further, the letter of 4 May 2020 proposed that the motion be dismissed with no order as to costs. The defendant’s solicitors were plainly concerned to keep the hearing date for the notice of motion in the event that agreement could not be reached on the form of security that would be provided or on the question of costs. I do not regard their approach as being other than consistent with the facilitation of “the just, quick and cheap resolution of the real issues in the proceedings”. While it was necessary for the parties to expend further costs to prepare the motion for hearing, this was required to ensure compliance with the Court’s directions and to ensure that, if the matter were not resolved, it could proceed on the date allocated. It was not unreasonable for the defendant to continue to prepare for the hearing after the letter of 4 May 2020 because of its terms, which were insufficient to protect the defendant’s interests as to the form of security, and because it made no provision for the plaintiff to pay the defendant’s costs of the notice of motion.
40. It is not necessary to determine whether the plaintiff has acted so unreasonably that it ought pay the defendant’s costs for the purposes of the first of the two exceptions to the general principle outlined in Lai Qin since I am satisfied that the present case falls within the second exception to the general rule. The plaintiff can be taken to have capitulated in the face of an overwhelming application for security for costs. The amount sought was supported by expert evidence as well as detailed evidence from Mr Hinckfuss about what he envisages will be required in the litigation. It is patently reasonable. The form of the security sought is entirely orthodox.
41. The defendant has succeeded on its application for security for costs in the amount sought. The plaintiff appears to have capitulated rather than have to provide its financial documents. The inference is compelling that the financial documents would not have assisted it to resist the defendant’s application for security. The defendant was required to incur costs to obtain this result and is entitled to be compensated by a costs order in its favour in respect of the notice of motion. I do not regard UCPR, r 42.7 as providing any impediment to the making of an order for costs since the present application was plainly a “separately identifiable matter”: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 at [11] (Barrett J).
42. An order that costs be costs in the cause is not appropriate since the merits of the application for security for costs bear no relation to the merits of the proceedings. For the same reason, an order that the costs be the defendant’s costs in the cause would be inappropriate. For the reasons given above I am not persuaded that there is any reason to deprive the defendant of its costs, including those incurred after 4 May 2020. The appropriate order is that the plaintiff pay the defendant’s costs of the notice of motion.
43. Mr Sulan did not want to be heard against an order that the defendant be granted leave to move to strike out the proceedings if security was not provided by the end of July 2020. Accordingly, I will make this order since it is preferable that proceedings which are not to be prosecuted are dismissed. I confirm that I do not have any expectation, one way or the other, as to whether the plaintiff will comply with the order to provide security.

Orders

44. For the reasons given above, I make the following orders:
    • (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.

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