Big Review TV Ltd (in liq) v FC Securities Pty Ltd [2025] FCA 222

FINSTRO HOLDINGS PTY LTD ACN 605 121 364 (FORMERLY FC CAPITAL HOLDINGS PTY LTD ACN 605 121 364)

1. The applicants provide security for the first to third respondents' costs of these proceedings in the amount of AUD$1,400,000 by the provision of an irrevocable bank guarantee issued by an Australian bank in favour of the first to third respondents, or by payment into court, by 4:00 pm on 3 April 2025.
2. If security is not provided in accordance with Order 1, the proceedings against the first to third respondents be stayed until such security is provided.
3. The applicants provide security for the fourth respondent's costs of these proceedings in the amount of AUD$890,000 by the provision of an irrevocable bank guarantee issued by an Australian bank in favour of the fourth respondent, or by payment into court, by 4:00 pm on 3 April 2025.
4. If security is not provided in accordance with Order 3, the proceedings against the fourth respondent be stayed until such security is provided.
5. If the fourth respondent considers that the amount of security in Order 3, which is GST-exclusive, should be increased by an amount for Goods and Services Tax, then that amount can be increased or supplemented by agreement between the applicants and the fourth respondent or, failing agreement within four business days, the fourth respondent can apply to the Court for an order that the amount of security be supplemented by an additional amount for GST.
6. The applicants pay 50% of the costs of the first to third respondents on their interlocutory application for security for costs.
7. The applicants pay 50% of the costs of the fourth respondent on his interlocutory application for security for costs.
8. The interlocutory application of the first to third respondents filed on 17 February 2025 and the interlocutory application of the fourth respondent filed on 17 February 2025 otherwise be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. Before the Court are applications for security for costs. Although a number of issues arise, an important issue is the impact of a significant delay on the claim for security. That is in circumstances where the evidence of the prejudicial impact of that delay on the applicant is somewhat attenuated. I have concluded that some security should be provided, but only for future costs and subject to a discount for delay.

1. The proceedings concern a claim by the first applicant (BRTV) and its liquidators against the respondents for the recovery of loss and damage caused by reason of their knowing involvement in various alleged contraventions of the Corporations Act 2001 (Cth) and breaches of fiduciary duty by the officers of BRTV, as well as knowing receipt of certain payments resulting from the alleged contraventions and breaches. The proceedings were commenced on 31 October 2022. The first to third respondents (the FC Respondents) are corporations. The fourth respondent (Mr Prout) was relevantly a director of the FC Respondents and is now separately represented. The carriage by the liquidators of BRTV of these proceedings is funded by third party funding. On 21 April 2022, the Court ordered pursuant to s 477(2B) of the Corporations Act 2001 (Cth) that the liquidators be permitted to enter into a funding agreement with Burford Asia Investments Pte Ltd and Schafer Park Investments LP. There is also an "after the event" (ATE) insurance policy in place provided by Burford Worldwide Insurance Limited (the ATE Policy).
2. The legal representatives of the respondents have changed over the course of the proceedings. From 8 November 2022, the respondents were represented by Macpherson Kelley. On 25 January 2023, Allen & Overy (now called Allen Overy Shearman Sterling) were appointed as solicitors for all respondents. On 15 June 2023, Mr Prout obtained separate representation and reverted to his former solicitors, Macpherson Kelley. Allen & Overy continued to act for the FC Respondents. On 29 November 2024, Macpherson Kelley ceased to act for Mr Prout and HWL Ebsworth Lawyers were instead appointed as his solicitors.
3. The proceedings are set down for a final hearing for three weeks commencing on 5 May 2025. The order setting the matter down for hearing was made on 11 September 2024. The present interlocutory applications were not filed until 17 February 2025. By the time they were filed, discovery and evidence were complete and all that remained to be done was the carrying out of pre-hearing steps, such as those dealing with objections and preparation of the court book. On any view, there has been delay in bringing the applications.
4. The question of security was first raised in 2022. On 8 November 2022, shortly after the commencement of the proceedings, the respondents' original solicitors (Macpherson Kelley) wrote to the applicants' solicitors requesting that BRTV provide security for the respondents' costs in the sum of $400,000 by way of payment into court. On 10 November 2022, directions were made by the Court that any application for security for costs be filed by 17 February 2023. That date was subsequently extended to 3 March 2023. No application was filed in accordance with that timetable.
5. There was instead a somewhat inconclusive exchange of correspondence. On 8 December 2022, the solicitors for the applicants provided a copy of the ATE Policy that had certain elements masked out including the $3 million limit of indemnity. The only information provided on the amount of coverage was the following statement in the covering letter:

We confirm that the amount of coverage under the ATE Policy exceeds the amount of the security for costs that your clients requested in Your Letter.

That was a reference to the $400,000 requested by the respondents' solicitors in their letter of 8 November 2022.

1. The respondents were therefore unaware that it was a $3 million policy and had only been told that the policy exceeded $400,000. They also had a redacted copy of the policy.
2. On 8 February 2023, Allen & Overy, then solicitors for all respondents, responded. That letter made various points, including:

(a) that the original specified amount of security (i.e. $400,000) was no longer adequate, and stating that the amount "is likely to only be sufficient for a part of the interlocutory steps in the Proceedings";

(b) that the form of security, being an ATE policy, was not an adequate form of security, citing authorities for that proposition; and

(c) that the redactions prevented the respondents from verifying the nature of the coverage or the amount of coverage. In that regard, the letter also asked for evidence that the ATE Policy was in effect.

1. The applicants' solicitors responded to this on 13 February 2023 asking for details of the amount of security now sought.
2. By letter dated 1 March 2023, the solicitors for the respondents shifted position to request a first tranche of security in the amount of $95,000 until the end of pleadings and reiterated their position that the ATE Policy was not sufficient security, with numerous reasons given for that position.
3. There were further inconclusive exchanges. On 23 March 2023, the solicitors for the applicants wrote complaining about the respondents' changing position on security, noting that the amount of security sought was likely to impact the applicants' decision as to what form of security for costs they were prepared to provide, and seeking details of the costs incurred and expected to be incurred "[t]o enable us to obtain instructions as to the quantum of security for costs sought by your clients and the form that security for costs will be provided".
4. There was no response to that letter, and there the matter lay for more than 18 months.
5. The question of security for costs was first reagitated by a letter from the solicitors for the FC Respondents dated 21 November 2024. As noted earlier, Mr Prout had by then become separately represented, and the letter was copied to his solicitors. The letter referred to the original request for security of $400,000 and stated that that original request "is no longer sufficient to cover the Respondents' costs". It requested the provision of an unredacted copy of the ATE Policy, and confirmation that the ATE Policy was in effect. After raising the potential inadequacy of the ATE Policy to provide appropriate security, it then made the somewhat nebulous request for the applicants to indicate "whether the Insurer (as defined in the ATE Policy) is prepared to take any steps to assuage our clients' concerns as to the adequacy of the ATE Policy including the capacity of the Insurer to meet an adverse costs order."
6. That letter, coming out of the blue after more than 18 months, produced a somewhat predictable response dated 29 November 2024 asserting delay. On Christmas Eve 2024, the solicitors for the FC Respondents wrote a further letter seeking security for costs in the amount of $2,005,417 excluding GST and in the form of a bank guarantee or payment into court. No particulars were provided as to how that somewhat precise amount was calculated. Predictably, that produced a request, inter alia, for details, which was dated 15 January 2025.
7. On 5 February 2025, the solicitors for the FC Respondents sent a further letter requesting security, this time for the amount of $4,407,104.46 excluding GST, which was said to be 70% of solicitor costs and 90% of disbursements, broken down into $2,425,039.01 for past costs and disbursements and $1,982,065.45 for estimated future costs and disbursements. Schedules were included with the letter that provided a reasonable level of detail as to how these amounts were calculated. This is the first occasion on which anything approximating the amount currently claimed in this application was requested.
8. In the meantime, on 15 January 2025, the solicitors for Mr Prout sent their own request for security for future anticipated costs only, in the amount of $1,131,403.90 including GST by way of payment into court or a bank guarantee. This amount was said to include a 30% discount on estimated solicitor costs, but no other particulars were provided. In response, on 20 January 2025, the solicitors for the applicants observed that the letter was "wholly devoid of the ordinary and necessary particulars to enable instructions to be sought". Stripped of the colourful language, that is a fair description. Mr Prout's solicitors remedied that deficiency on 12 February 2025, when they sent a letter asking for a materially different amount by way of security, being $1,703,854.64 including GST, and which also provided further details of that claim, together with schedules providing a tolerably detailed breakdown of the estimate.
9. I have summarised this correspondence in a little detail because it is relevant to the question of delay. In particular, I find that it was not until 5 February 2025 that the FC Respondents made a request for security that corresponds in any way with what is now sought in this application. The equivalent date for Mr Prout is 12 February 2025.
10. As discussed below, this is not the way in which applications for security for costs should be advanced.
11. Another relevant factual matter is that on 8 May 2024, a decision of the Supreme Court of New South Wales was delivered in which Nixon J considered whether an ATE policy on materially the same terms as the ATE Policy in the present case provided a satisfactory form of security for costs. The decision is APFC No. 1 Corporation v Insurance Australia Limited [2024] NSWSC 534 (APFC). His Honour concluded that it did not. This development did not cause the respondents to bring any prompt application for security and, as set out above, the respondents had already taken the position that the applicants' assurance that the ATE Policy was sufficient to cover $400,000 of costs did not provide sufficient security to the respondents.
12. I am grateful for the detailed reasoning of Nixon J in APFC, and I adopt that reasoning in the present case. I accept that the ATE Policy in the present case does not provide adequate security for the respondents' costs and any security ordered by me is therefore to be provided in a traditional form (payment into court or bank guarantee), rather than in the form of an equivalent ATE policy.
13. Counsel for the FC Respondents, Mr Knackstredt, submits that the FC Respondents' delay is explained and justified by, in effect:

(a) the fact that the redacted ATE Policy was provided, coupled with an indication that it covered the $400,000 security sought;

(b) the fact that the parties were seeking to resolve the matter by mediation for some months; and

(c) the increase in complexity of the proceedings at a relatively late stage.

1. I do not accept this submission. The amount of security sought in February 2025 is more than ten times the amount sought in November 2022, and therefore more than ten times the amount that had been the subject of assurances about the coverage of the ATE Policy. The scope of the proceedings did not suddenly increase tenfold. Further, the respondents adopted the position in correspondence as early as 8 February 2023 that the ATE Policy did not provide adequate security, and that the amount of security necessary was more than $400,000. It would have been apparent to the FC Respondents for a long time that they lacked adequate security for their legal costs. The mediation does not explain why no application for security was made within the timetable ordered by the Court. It does explain why no steps were (belatedly) taken for several months in 2023, because between 14 April and 23 August 2023 there was an order in effect that prevented the taking of any further steps in the proceedings. However, that does not explain the subsequent period.
2. The position is relevantly the same for Mr Prout. In his written submissions, Mr Prout relies on four matters. The first is the decision in APFC, which it is said provided Mr Prout with "sound authority to challenge the adequacy of the Burford Policy as a form of security for costs". The second was that it had come to Mr Prout's attention that both the funders and the provider of the ATE Policy had left the Australian market. The third was that it had become clear that Mr Prout's costs would substantially exceed the amount of security previously sought by Mr Prout. And the fourth was that it had recently become apparent that assurances that the ATE Policy had a limit that exceeded the respondent's potential costs were not accurate.
3. I do not accept these matters provide a justification for the delay in the present case. The respondents had collectively adopted a position as early as 8 February 2023 that the original $400,000 demanded was no longer adequate, that the ATE Policy was not appropriate security, and that their costs were not otherwise secured. Therefore, nothing in the decision in APFC justifies the delay. It would have been apparent to those acting for Mr Prout, and indeed it was their communicated position, that the previous assurance that an ATE policy covered an amount of $400,000 was not sufficient comfort for the combined costs of the respondents. The fourth point set out above is inaccurate, in that that position was stated by the respondents as early as 8 February 2023 - the relevant assurance from the applicants was that the ATE Policy covered $400,000 in costs, and the respondents asserted that this was not sufficient.
4. There is therefore no proper explanation or justification for the very considerable delay in the present case.
5. The second applicant, Mr Elkerton, has provided evidence, inter alia, of the steps that he would be required to take if he were to be required to organise a further ATE policy. He was cross-examined, including on whether he had taken any steps to put in place arrangements for the provision of additional security. In submissions, counsel for the FC Respondents sought to rely upon the absence of any steps taken by Mr Elkerton in this regard. I reject this implicit criticism of Mr Elkerton. There is no occasion for Mr Elkerton to take steps to organise security until he knows how much security will be ordered, and the form in which it is required. There is, for example, no point in Mr Elkerton expending time and resources organising a different ATE policy if the Court is going to order that a certain amount of security be paid into court or provided by way of bank guarantee. Mr Elkerton quite sensibly is awaiting the outcome of this application.
6. Mr Elkerton gives evidence that he is heavily involved in the conduct of the proceedings, and provides instructions to the applicants' solicitors and liaises with counsel and other persons involved in the proceedings. Mr Elkerton also gives evidence of the numerous steps that have to be taken by the applicants' team in the 7½ weeks leading up to the trial. I accept all of this evidence, albeit it is somewhat general. As discussed below, one of the vices in bringing an application for security in the pre-trial period is that it has the potential to distract from the preparation of the hearing.
7. However, no more specific evidence of prejudice has been adduced by the applicants. There is no evidence that the applicants have changed their position to their detriment in reliance on the absence of any previous application for security, or that an order for security will prevent the proceedings from continuing (subject to the generalised evidence just identified about the work required to prepare the matter for trial and the significant involvement of Mr Elkerton in that process).

Relevant principles and the issues for determination

1. Counsel for the applicants, Mr Hynes, accepts that the Court's discretion to order security is enlivened, given the status of the applicants and the fact that the proceedings are being funded by a third party. Mr Hynes focussed his submissions on delay. He contends that the delay is very significant and disentitles the respondents from any order for security for costs.
2. There is a general principle that applications for security must be made promptly: Devenish v Jewel Food Stores Pty Ltd [1990] HCA 35; (1990) 94 ALR 664 (Devenish) at 666 per Mason CJ; Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd [1987] FCA 102; (1987) 16 FCR 497 (Bryan E Fencott) at 514 per French J. There are sound reasons for this. If a plaintiff is going to have to put up funds for the potential cost exposure of the defendant, it is important to know this in advance before legal costs are expended. In Buckley v Bennell Design and Constructions Pty Limited (1974) 1 ACLR 301 (Buckley) at 309, Moffitt P made the following observations:

The right to seek security for costs and to stay proceedings, with the possible result that a claim for damages is frustrated, is a powerful weapon. Therefore, the litigant who seeks to use it against his opponent is at risk of not having it available, unless the application is made and persevered with in circumstances involving the least oppression of his opponent. The primary reason why the application should be brought promptly and pressed to determination promptly is that the company, which by assumption has financial problems, is entitled to know its position in relation to security at the outset, and before it embarks to any real extent on its litigation, and certainly before it is allowed to or commits substantial sums of money towards litigating its claims.

1. As was observed in Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 (Christou) at [20] per Newnes JA (Murphy JA agreeing), "[s]ecurity for costs is not a card that a defendant can keep up its sleeve and play at its convenience".
2. In Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 (Green), the Court was dealing with a situation involving, inter alia, a multi-year delay in the bringing of an application for security. Hodgson JA, with whom Campbell JA agreed, made the following observations at [57]:

In my opinion, it is not necessary, in order for a plaintiff to show prejudice from delay, that the plaintiff prove what the plaintiff would have done if the application had been made earlier ... In my opinion, where substantial costs have been incurred since the time when an application for security should have been brought, it would be unreasonable to deny the existence of prejudice unless the plaintiff can prove exactly what the plaintiff would have done if the application had been brought earlier.

1. In Green, the Court of Appeal did not disturb an order of the trial judge limiting the security to future costs only.
2. In Christou, Newnes JA observed (at [23]), relying on Green, that in order to show prejudice it is not necessary for a plaintiff to establish what it would have done differently if the application had been made earlier, and that prejudice will generally be regarded as inherent in substantial delay.
3. There are cases where delay was a disentitling factor, without evidence that the provision of security would prevent the action from continuing or cause prejudice other than the mere risk that money already expended might be wasted: see Buckley at 308 per Street CJ and at 309 per Moffitt P; Devenish at 666 per Mason CJ.
4. In PPK Willoughby Pty Limited v Baird [2019] NSWCA 48, Bell P and Simpson AJA at [11] made the following observations:

Insofar as his Honour suggested that some authorities established that delay could "possibly even [be] irrelevant, unless it can be seen to have generated or produced some consequence of significance", we would not agree. In our opinion, delay will invariably be a relevant discretionary factor in any application for security for costs, but the degree or extent of its relevance will vary according to the circumstances of any given case along a spectrum from the slight to the extreme.

1. It may be necessary to give separate consideration to security for past costs and security for expected future costs. In Christou, Newnes JA observed (at [29]) that:

[A] party which unreasonably delays in making an application for security for costs cannot ordinarily expect to obtain security for costs which it has incurred during the period of the delay.

citing authorities including Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 at 125 per Waddell J. See also the outcome in Green, discussed above. I agree with this observation of Newnes JA in Christou.

1. If an application for security is brought very late it might be refused on the grounds of delay if:

(a) there is insufficient time for a proper opportunity to be given to the plaintiff to provide security: Hoser v Pelley [2023] VSCA 1 at [36] per Emerton P and J Forrest AJA, noting in that case that a plaintiff is normally given 28 days to provide security, which was less than the time available to the hearing; or

(b) if the process of providing security is likely to interfere with the proper preparation of the hearing. In this regard, Mr Hynes provided me with a copy of an apparently unpublished decision of Re Balamara Resources Limited (Supreme Court of New South Wales, Black J, 5 February 2024, unreported: 2023/00250149) (Balamara).

In Balamara, Black J concluded, without evidence specifically directed to the fact, that it was "self-evident" that, in the two weeks before a hearing of proceedings, a plaintiff will be disadvantaged if, in addition to preparing a relatively complex matter for hearing, it is also required to deal with the financial and administrative steps involved in providing a substantial amount of security in a short period.

1. The Court has a broad and unfettered discretion to order that a plaintiff/applicant give security for costs in such manner and form as it directs, save that the discretion must be exercised judicially: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3 per Sheppard, Morling and Neaves JJ. As to the quantum of security, an award of security by the Court is not intended to be a complete and certain indemnity for the costs actually incurred by the party having the benefit of the security: Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171 at 175 per Fullagar J; CIP Group Pty Ltd v So (No 4) [2024] FCA 1372 at [38] per Derrington J. Nor is the quantification of the appropriate amount of security to be awarded an exact science requiring a full assessment of costs. Instead, the Court may adopt a "broad-brush" approach having regard to the information before it: Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262 at [24] per Gleeson JA.

1. In the present case, there has been very substantial delay in bringing an application for security. That delay is largely unexplained (except for a period of a few months in relation to the mediation). The respondents chose not to file an application in accordance with the orders of the Court. Even when the issue was re-enlivened, there was further delay in formulating a particular amount claimed.
2. I am not prepared to make any order for security for past costs, being costs incurred before the FC Respondents' letter of 5 February 2025 or Mr Prout's letter of 12 February 2025. The respondents decided to incur those costs without security and without pressing any claim for security. The applicants were not required to prosecute the proceedings to that point on the footing that they would have to put up cash or guarantee upfront for the respondents' costs. There is no basis in the present case for retrospectively changing the basis on which such costs were being incurred. In accordance with the authorities cited above, a respondent cannot ordinarily sit on its hands and then obtain security after the event for past costs.
3. The claim for future costs involves somewhat different considerations. In accordance with the authorities set out above, even in the absence of specific evidence about prejudice, delay could be a disentitling factor. On any view, it is a factor that I must take into account. The present application has come so late that there is a real danger that the provision of security will interfere with the preparation for the hearing which is now only seven weeks away. Security for costs applications should not be brought this late in the absence of very good reasons, of which there are none here.
4. However, it is not a case where material prejudice will inevitably occur, and the applicants' evidence does not descend to any detail in this regard. There is, for example, no evidence as to the likely impact of an order to provide security by way of money paid into court or a bank guarantee. The applicants' position on this interlocutory application would have been very much stronger if there was evidence of relevant prejudice in that regard. In the absence of any such evidence, it is somewhat difficult to infer material prejudice. It is perhaps unlikely that the provision of security in the form of payment into court or a bank guarantee will cause substantial disruption to the preparation for the hearing. I accept that it might cause some minor disruption.
5. I also take into account that the present proceeding is a funded action, supported by a commercial funder. The proceedings are, in that sense, a business opportunity for the funder. It would ordinarily only be fair that such a business opportunity come with the price that the respondents should not be unprotected for costs exposure if the proceeding fails. It must also have been obvious to the applicants that there was a risk that security for future costs might be ordered at some point.
6. In all the circumstances, I propose to make an order for security for future costs. However, I propose to discount the amount of the security to account for the delay in bringing the application.
7. In terms of quantum, there is some detailed evidence as to estimated costs, including expert evidence as to whether costs would be recoverable and how they might be discounted. However, it is not necessary to go into that evidence in any detail. That is because the estimates are remarkably similar for an application of this type.
8. In respect of the FC Respondents, their estimate for future costs has been calculated from 1 February 2025. That is five days prior to their letter of 5 February 2025, which is the date from which I would allow future costs. However, that includes a weekend, and so the difference is likely to be relatively minor. The solicitor for the FC Respondents, Mr Shepherd, provides an estimate of future costs in his affidavit, assuming a three week hearing. After applying discounts which Mr Shepherd says he expects a Court would apply, he arrives at a figure of $1,991,759.86 excluding GST. The FC Respondents also rely upon an expert report of Mr Roland Matters, an expert in costs assessment, who assesses the appropriate figure for future costs at $1,946,162.66 excluding GST.
9. The applicants rely upon an expert report of Mr Ian Ramsey-Stewart. Mr Ramsey-Stewart calculates that reasonable future party/party costs for the FC Respondents, including a three week hearing, would be $1,735,576.34 excluding GST.
10. Having regard to the broad-brush nature of the Court's estimate in a security for costs application, there is no need for a detailed review of the rival processes by which these quite similar estimates have been reached. I propose to take approximately a midpoint between the estimates of Mr Matters and Mr Ramsey-Stewart, which is approximately $1.84 million.
11. The applicants point out that these figures include the cost of a further mediation which was required by an order of the Court. However, the parties have agreed not to conduct such a mediation, and the relevant order has been discharged. Mr Shepherd allowed $86,330 for this further mediation, on a discounted basis. An amount of this order should be removed. Taking this into account, I propose to allow $1.76 million for the FC Respondents' future costs. I discount 20% for delay. That produces the amount of approximately $1.4 million.
12. In respect of the costs of Mr Prout, his solicitor Mr Zabow estimates future costs (i.e. from 12 February 2025) to be $1,290,721.20 exclusive of GST, including relevant discounting. The applicants' expert, Mr Ramsey-Stewart, estimates the reasonable future costs including a three week hearing to be $1,008,841.87 exclusive of GST.
13. Mr Ramsey-Stewart explains that GST is properly claimable as costs only if Mr Prout does not have an ABN and is not registered for GST and therefore cannot claim for the GST payable, or else Mr Prout would obtain a double benefit. Mr Ramsey-Stewart notes that a double GST benefit would also be obtainable if Mr Prout was funded by a third party funder. The evidence does not illuminate the GST position of Mr Prout. There is not enough information for me to determine whether security for Mr Prout's costs should include GST. In those circumstances, I propose to order the provision of security on a GST-exclusive basis. If in fact the amount ought to be GST-inclusive, then the parties can agree upon the GST-inclusive amount, or if no consensual accommodation is reached then Mr Prout can raise this with the Court, supported by appropriate evidence, and a further award for security can be made. If this becomes necessary, and Mr Prout obtains what he seeks, then there may be costs consequences for the applicants over and above the costs award set out below.
14. On a GST-exclusive basis, again, the competing amounts are sufficiently similar to render it unnecessary, on a broad-brush approach, to analyse each component in detail. The mid-point of the competing figures is $1,149,781.54. Again, this includes an amount for a mediation, estimated by Mr Zabow to be $32,977 on a discounted basis. I remove that, and I then discount that amount by 20% for delay. This produces a future costs figure of approximately $890,000 excluding GST, which I will order.
15. The applicants have sought that security be provided by way of tranches. If there had been evidence of any financial constraint I would have been favourably disposed to this suggestion. However, in the present circumstances, a staged approach is likely to increase the level of distraction from the conduct of the proceedings, for all parties and potentially for the Court.
16. The amounts identified above should be secured by payment into court or by an appropriate bank guarantee.

1. Each party has had some measure of success on these interlocutory applications. The respondents have not obtained the amount of security which they sought, and the applicants have successfully resisted aspects of the applications on the grounds of delay. However, the respondents ultimately have obtained an order for security which the applicants resisted entirely, and therefore have obtained a positive result on their applications. The appropriate result is that the applicants pay 50% of the respondents' costs of the respective interlocutory applications.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moore.