where the parties previously agreed the amount of security to be provided up to an identified milestone and that there be no leave to apply for additional security before that milestone
where the agreement was expressed in consent orders
Quick Take
1The court has discretion under r 39.05(c) of the Federal Court Rules 2011 and its inherent power to vary interlocutory consent orders that embody a real contract between the parties, but the fact of the parties' agreement is an important factor weighing against the exercise of that discretion.
2The requirement that variation of interlocutory consent orders be 'necessary' (per RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd) means the court must be satisfied the variation is necessary to do justice between the parties, with a centrally relevant consideration being the injustice of departing from the parties' voluntary agreement.
3Where increased costs since a consent order fixing security were incurred on work that arose naturally in the course of litigation and was reasonably within the contemplation of the parties at the time of agreement, the risk of those costs exceeding estimates was accepted by the party agreeing to the security cap.
