The Court dismissed a security for costs application against an impecunious owners corporation, holding that the decisive factor was that the plaintiff's impecuniosity was attributable to the defendant's conduct within the meaning of UCPR r 42.21(1A)(d), because the owners corporation's parlous financial position resulted from borrowings to fund litigation arising from the defendant's alleged breaches. The Court found no material difference between borrowing to remedy defects and then suing, versus borrowing to fund the litigation itself. On stultification, the Court held the owners corporation failed to discharge its onus because there was no evidence that lot owners — who stood to benefit and were ultimately liable for costs via statutory levies — could not collectively fund the provision of security.
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