Application to dismiss a proceeding for failure to pay security for costs
Competing application by plaintiffs for extension of time for provision of security
No credible evidence plaintiffs will or are likely to have required funding available on specified date
Quick Take
1Where a plaintiff seeks an extension of time to provide court-ordered security for costs, the court requires credible evidence — not merely hearsay assertions of expected overseas funds unsupported by any documentation, affidavit from the proposed funder, or identified source — that the security will or is likely to be provided by the proposed date.
2A plaintiff's inability to fund not only the security for costs but also its own legal costs of preparing for and conducting the trial is a factor of high relevance in the discretionary assessment of whether to dismiss for non-payment of security, particularly where the trial is imminent and counsel have not been retained.
3Repeated failures to comply with security for costs orders, combined with prior judicial warnings about the consequences of further default and the real prejudice to the defendant of continued uncertainty in the lead-up to a complex trial, may together warrant dismissal notwithstanding the gravity of denying a party its day in court.
