The Court held that a corporation's demonstrated unwillingness to pay a judgment debt owed to a particular creditor is relevant (though not determinative) to the threshold question of whether there is reason to believe the corporation will be unable to pay a future costs order, because such unwillingness can support an inference that those in control may organise the corporation's affairs to render it unable to pay. The Court also held that where only the plaintiff could prove the distinction between unwillingness and inability to pay, and the plaintiff failed to adduce evidence from a person in control explaining the non-payment, it was not appropriate to infer unwillingness when inability was equally open. On the facts, the threshold was satisfied and no discretionary factors (including stultification) weighed against ordering security of $166,000.
The full text is available to signed-in members, including the 1 later case that cites this judgment.