Blue Oil Energy Pty Limited v Tan

[2014] NSWCA 81

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Corporate plaintiff
4. › Reason to believe plaintiff unable to pay costs
5. › Subordination agreement with third party creditor
6. › Whether subordination agreement relevant to threshold question or form of security
7. › Uniform Civil Procedure Rules 2005 (NSW), r 42.21(1)(d)
8. › Corporations Act 2001 (Cth), s 1335
1. Practice and Procedure
2. › Security for costs
3. › Form of security
4. › Whether security must be in least disruptive or disadvantageous form
5. › Payment into court or unconditional bank guarantee
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.21(2)
7. › Corporations Act 2001 (Cth), s 1335(1)
1. Appeal
2. › Leave to appeal
3. › Interlocutory decisions
4. › Practice and procedure matters
5. › Threshold of clear case of material error
6. › Reluctance of appellate courts to intervene prior to termination of proceedings at first instance
1. Appeal
2. › Points not taken below
3. › Party bound by conduct of case at first instance
4. › Exceptions
5. › Whether in interests of justice to permit new point on appeal

Quick Take

Neither UCPR r 42.21(2) nor s 1335(1) of the Corporations Act 2001 (Cth) contains any limitation as to the form of security which may be ordered; the governing consideration is whether the form of security is adequate to protect the party seeking it, not whether it is the least disadvantageous to the party providing it. A subordination agreement from a foreign-incorporated entity controlled by a person other than the signatory, where underlying loan documents are not produced, may properly be given no weight. An applicant for leave to appeal from an interlocutory practice and procedure decision must establish at least a clear case of material error.