About Life Pty Ltd v Kloczko

Judgment

1. By a notice of motion filed 7 June 2019 (the Security Motion), the cross-defendants to the Second Cross-Claim (Maddocks) applied for an order that the cross-claimant (About Life) provide further security for Maddocks' costs. Maddocks asked for the sum of $700,000, or such other sum as the Court might order, without prejudice to their rights to seek additional security at a later stage of the proceedings. The application was made pursuant to r 42.21(d) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or s 1335 of the Corporations Act 2001 (Cth). Maddocks asks for security by payment into Court or by provision of a bank guarantee.
2. On 18 November 2020, orders were made as follows: 1. Security in the sum of $850,000.00 be paid by About Life in a form acceptable to either Maddocks or the Court, in the following tranches: 1. $450,000.00 by 14 December 2020; 2. $400,000.00 by 14 January 2021. 1. In the event that security is not paid on or before the dates set out in 1(a) and 1(b), Maddocks has leave to apply to the Court for the matter to be stayed. The Court noted that an order made by Parker J on 31 August 2018 was to remain undisturbed. That order required About Life to pay the sum of $83,000 either into Court or otherwise in a form acceptable to the Registrar, 42 days before the date fixed for the hearing of the Second Cross-Claim.
3. At the time of making the orders of 18 November 2020, directions were given for the parties to file and serve written submissions on the question of the costs of the Security Motion and I have now received written submissions. The parties have requested that the question of costs be decided on the basis of the written submissions without any further oral argument.
4. Maddocks ask for an order that About Life pay its costs of the Security Motion on the basis that they were wholly successful in obtaining the relief that they sought and that costs should follow the event. About Life disputes the assertion by Maddocks that they were wholly successful and contends that the Court should order that the costs of the Security Motion be the parties' costs in the proceedings or that there be no order as to the costs of the Security Motion. About Life asserts that the quantification of the future costs to be incurred by Maddocks was the main issue and that Maddocks incurred unwarranted costs in its pursuit of relief in the Security Motion.