Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd

(2008) 67 ACSR 105; [2008] NSWCA 148

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Liquidator suing personally
4. › General principles as to ordering security for costs against plaintiff liquidators
5. › Whether liquidator suing personally should be treated like natural person plaintiff
6. › Whether guidelines limit discretion to order security
7. › Supreme Court Act 1970 (NSW), s 23
8. › UCPR r 42.21
1. Practice and Procedure
2. › Security for costs
3. › Litigation funding
4. › Whether involvement of commercial litigation funder relevant to ordering security for costs
5. › Whether funder's commercial profit motive distinguishes case from ordinary liquidator proceedings
1. Practice and Procedure
2. › Security for costs
3. › Delay in application
4. › Whether gross unexplained delay in applying for security gives rise to presumption of prejudice
5. › Whether plaintiff must prove what would have been done if application made earlier

Quick Take

Liquidators suing personally are generally to be treated like natural persons for security for costs purposes, and security will ordinarily only be ordered in the circumstances set out in UCPR 42.21 or in exceptional cases such as dissipation of assets, non-payment of previous costs orders, or weak cases brought to harass. However, the involvement of a commercial litigation funder whose interest is solely to make a commercial profit is a factor that may take the case outside the normal position and justify an order for security. The extent of the funder's entitlement to proceeds is relevant to quantum. The majority and minority disagreed on whether the litigation funder's involvement alone was sufficient to warrant departure from the usual approach.