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  • Unreported Judgment

Sacola Company Limited v Gormac Developments Pty Ltd

 

[2004] QSC 320

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

No 5415 of 2000

SACOLA COMPANY LIMITED (ARBN 052 455 044)

Plaintiff

and

 

GORMAC DEVELOPMENTS PTY LTD (ACN 010 901 603)

Defendant

BRISBANE

DATE 03/09/2004

JUDGMENT

HIS HONOUR:. This is an application for security for costs. The sum sought is slightly in excess of $140,000.

The plaintiff is a company incorporated in Hong Kong. It has no assets in Australia. It is presently prosecuting complicated litigation which has been on foot for several years.

The third defendant, which brings this application, is presently proposing to amend its defence. The trial therefore seems some time away, despite directions to be made today regulating the progress of the case towards a trial if a mediation fails.

It was only a few months ago that the applicant's solicitors first wrote to the plaintiff's lawyers making a request for security for costs. It was in relation to the costs from that time forward to trial. So the delay between the inception of the proceedings and the notifying of the request (and the bringing of the application for security) is significant. That is often an important consideration, as it is here. But the weight to be attached to it needs to be considered in the light of other pertinent circumstances, including an absence of any contention that the litigation has been prosecuted in a hope or expectation that an application for security for costs might not be made.

Plainly, the plaintiff is a corporation in respect of which there is good reason to believe that it would not be able to pay the applicant's costs, if ordered to pay any substantial part of them. So the jurisdiction to make the order is enlivened. And the company is, as I have said, a foreign corporation with no assets in Australia.

The other important consideration is that, though the plaintiff appears to be without resources, the litigation is being sponsored, and effectively prosecuted, by others who stand behind the plaintiff. There is no evidence that any of them lacks the wherewithal to provide security.

In short, there is no justification for any apprehension that the due prosecution of the case by the plaintiff might be affected by an order for security for costs. Indeed, that substantial security has previously been provided in support of an undertaking as to damages offered by this foreign plaintiff suggests that there is no risk at all that an order for even more than the about $140,000 sought might prejudice the plaintiff's prospects of pursuing the case to the end of a trial.

There is a dispute about what the quantum of the order ought to be. One side suggests a figure half that proposed by the other.

It is not possible to form a concluded view about how long the trial is likely to take. But the issues seem, on the present pleadings, relatively complicated; and from what I have been told by Mr Sullivan, the proposed amended pleading is unlikely to simplify things.

There will be a need for interpreters.

The case is therefore very likely to take a long time to try. As best it can be presently estimated, I do not regard the period of time predicted by the applicant as inflated. And I do not consider that any discount ought to be made from the amount of security which is being sought for that, or any other, contingency.

Therefore, rounding the amount off, there will be an order for security for costs in the amount of $140,000, and I will hear submissions with respect to the form of order.

HIS HONOUR: The Registry will be informed that the estimate is 45 minutes, and there will be orders as per drafts.

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Editorial Notes

  • Published Case Name:

    Sacola Company Limited v Gormac Developments Pty Ltd

  • Shortened Case Name:

    Sacola Company Limited v Gormac Developments Pty Ltd

  • MNC:

    [2004] QSC 320

  • Court:

    QSC

  • Judge(s):

    Byrne J

  • Date:

    03 Sep 2004

Litigation History

No Litigation History

Appeal Status

No Status