The correct test for assessing the merits of a plaintiff's case on a security for costs application is whether the claim is bona fide and raises real issues to be tried, not whether there is a 'real likelihood' of success. The Gentry Bros principle — that personal undertakings by all shareholders standing behind an impecunious corporate plaintiff fulfil the statutory purpose of s 1335 — is the preferred approach in NSW, though it requires all relevant shareholders to come forward. A plaintiff resisting security on stultification grounds must adduce evidence of the impecuniosity of those standing behind the company; assertions by counsel are insufficient. The question of whether the Gentry Bros principle should be treated as a general rule or merely one factor remains unresolved and may require a five-judge bench.
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