Florida Kitchens Pty Ltd v Number One Marble and Granite

Costs orders

1. To date there have been three costs orders made, one in favour of Florida Kitchens and two in favour of Number One. They are: 1. On the decision of the Local Court dated 27 July 2016, leave was granted for Number One to file an amended statement of claim. Number One was ordered to pay Florida Kitchens' costs thrown away by the amendment as agreed or assessed. Mr George Elias of Cadmus Lawyers, solicitor acting for Florida Kitchens, sent an invoice to Number One in relation to those costs for the total sum of $29,527.50. Number One submitted that the claim is outrageous. The difficulty with this invoice is that it contains costs that do not relate to the costs thrown away by the amendments to the statement of claim. In any event, if Number One does not reach an agreement with Florida Kitchens, Florida Kitchens will be required to have its costs assessed. 2. In the decision of the Tribunal Member dated 5 December 2017 (CB 49), Florida Kitchens was ordered to pay Number One's costs. 3. In the decision of the Tribunal Member dated 12 June 2018, Florida Kitchens was ordered to pay the costs of Number One on an indemnity basis.
2. Florida Kitchens is awaiting the finalisation of proceedings before preparing its two bills of costs for assessment.
3. The nub of the dispute that was before the Tribunal Member is set out in the decision of the Appeal Panel at [2] (CB 93). In summary, the sum of $20,130 was found to be due in respect of the manufacture and installation by Number One, at the request of Florida Kitchens, of Caesarstone bench tops and splash backs at three building sites. At the hearing, Florida Kitchens relied upon a witness statement, subject to objection. As the statement was admitted into evidence but was not available for cross examination, counsel for Number One submitted that it should be given no weight. Two witnesses for Number One gave evidence.

Proceedings in this Court

1. On 20 December 2018, Florida Kitchens filed a summons in this Court seeking leave to appeal the decision of the Appeal Panel.

Leave to appeal

1. After the application for security for costs is determined, the issue to be determined at the hearing is whether Florida Kitchens should be granted leave to appeal in this Court pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"). Section 83(1) of CAT Act provides that the Florida Kitchens requires leave from the Supreme Court, and may only appeal on a question of law. It may be that both the application for leave and the appeal are dealt with together. That is a matter for directions.
2. Section 83 of the CAT Act reads: "83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. … (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. …"

The summons seeking leave to appeal

1. Florida Kitchens' summons seeking leave to appeal states that the Appeal Panel erred in law in not finding that Tribunal Member G Meadows erred in law and/or in the exercise of his discretion. It then sets out 106 grounds of appeal, which understandably I have not reproduced here. Counsel for Florida Kitchens submitted that the application for leave to appeal involves matters including errors in law, jurisdictional issues, questions of public interest, denial of procedural fairness, failures to apply and comply with the terms of the applicable legislation, in particular the Home Building Act 1989 (NSW), lack of evidence in supporting findings, failure to take into account mandatory relevant considerations and statutory sanctions, taking into account irrelevant considerations, failure to give proper and/or adequate reasons, making findings and conclusions amounting to jurisdictional error and making speculations and conclusions not supported by evidence and/or contrary to the evidence.
2. It should be borne in mind that the onus is on Florida Kitchens to articulate its summons with precision and with a view to identifying the real questions of law. The summons seeks only leave to appeal. It does not seek a judicial review under s 69 of the Supreme Court Act 1970 (NSW). Some of these matters raised in the summons seem to be grounds of judicial review and some are neither questions of law nor grounds of judicial review.
3. The Appeal Panel grouped the grounds of appeal before it into Groups A to J. They are:

• Group A - Failure to provide sufficient or proper reasons (Grounds 1, 21);
• Group B - Denial of procedural fairness in the conduct of the hearing (Ground 2);
• Group C - Denial of procedural fairness through actual and apprehended bias (Grounds 8-9);
• Group D - Failure to deal with the case put by Florida Kitchens, and in particular, failing to consider or apply the relevant provisions of the Home Building Act (Grounds 3-7, 33);
• Group E - Making findings without evidence (Grounds 16, 17, 30, 31, 35-36);
• Group F - Making inconsistent findings (Ground 18);
• Group G - Taking into account irrelevant matters (Grounds 14-15);
• Group H - various challenges to the Member's conclusions and specific factual findings and observations of the Member as being against the weight of the evidence (Grounds 10-13, 19, 32);
• Group I - Costs (Grounds 22-29); and
• Group J - Two grounds not falling within any of the previous groups (Grounds 20, 34).

Security for costs

1. Number One relies upon UCPR 42.21 and the court's inherent power to order security for costs. Florida Kitchens opposes the orders sought.
2. UCPR 42.21 reads: "42.21 Security for costs (1) If, in any proceedings, it appears to the court on the application of a defendant: … (d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or … the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. … (2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct. (3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff's claim for relief in the proceedings be dismissed. (4) This rule does not affect the provisions of any Act under which the court may require security for costs to be given."
3. Counsel for Florida Kitchens submitted that an appeal from NCAT is a judicial review of the decision made by NCAT, and that these appeal proceedings are governed by ss 65 and 69 of the Supreme Court Act and UCPR 59.11.
4. According to Florida Kitchens, the issue of security for costs is governed by UCPR 59.11. It submitted that the application for security for costs was initiated by Number One pursuant to UCPR 42.21, and that UCPR 42.21 does not apply to these proceedings. Therefore, Number One's application for security for costs is misconceived and should be dismissed with costs.
5. UCPR 59.11 reads: "59.11 Security for costs (1) A plaintiff is not to be required to provide security for costs in respect of judicial review proceedings except in exceptional circumstances. (2) Where a plaintiff: (a) invokes an open standing provision, or (b) commences representative proceedings, the court is not to treat the plaintiff as bringing proceedings for the benefit of a third party for the purposes of considering whether exceptional circumstances exist. (3) This rule has effect despite rule 42.21."
6. Florida Kitchens' application for leave to appeal is not a judicial review of the decision of NCAT, nor does Number One rely solely upon UCPR 42.21. It also relies upon the inherent power of the Court. As I have explained earlier, the summons is framed in terms of leave to appeal and not judicial review. It is my view that UCPR 59.11 does not apply to a summons seeking leave to appeal. This argument fails.
7. Pursuant to UCPR 42.21(1)(d), the Court must be satisfied that there are reasons to believe that Florida Kitchens will be unable to pay Number One's costs if ordered to do so ("the threshold issue"); and that the Court should exercise its discretion to order security for costs having regard to a range of factors, a summarised by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ("Meltglow").

The threshold issue

1. Florida Kitchens submitted that the onus is on Number One to identify the basis of its concerns and establish its allegations, and that it has failed to do so.
2. On 27 December 2018, Number One's solicitor, Mr David Simons, wrote by email to Florida Kitchens' solicitor, Mr George Elias. The email stated (CB 40): "We refer to the Summons seeking leave to appeal by your client. We note that there are over one hundred grounds of appeal alleged, which is even more than the number alleged by your client before the panel. Our client will incur substantial costs in these appeal proceedings, which we would estimate to be in excess of $60,000.00. Our client is concerned about the ability of your client to meet a costs order should our client be successful in the proceedings. So that we may advise them in that regard, we request that your client provided us with: Their profit and loss report and balance sheet for the financial years ended 30 June 2017 and 2018; and Bank statements for the period 1 July 2018 to date for any bank accounts operated by or on behalf of the Defendant. Alternately, if your client is willing to provide adequate security for costs please let us have details of same."
3. On 22 January 2019, the solicitor for Number One emailed the solicitor for Florida Kitchens to serve its appearance, and seek a response to its earlier correspondence as a matter of urgency (CB 41).
4. On 5 February 2019, the solicitor for Florida Kitchens emailed Number One's solicitor, stating (CB 42): "Reference is made to your email of 4 February 2019 and our email of same. We respond as follows: 1. Our Client's Appeal has merits and prospects of success. 2. The Appeal raises, amongst other things, important issues of public interest. 3. Our client had no problem in paying, under protest and whilst reserving its rights, the sum of $20,130.00 to your client, and which our client is seeking back. 4. The appealed decision involves, amongst other things, a matter of lack of jurisdiction by NCAT, having regard to the determination made. 5. If you recall, our client was attempting to resolve the matter on a commercial and without prejudice basis, and made an offer to your client, and which your client is well aware of and as result of our client's financial ability, and your client had unreasonably rejected it. 6. A tax invoice was sent to your client through your office in March 2017, after our client has obtained a costs order against your client in the Local Court proceedings, to which your client has failed to pay, or object to and/or apply to assess, to date. Therefore, we cannot see as to how your client is now alleging that it is concerned about our client's ability to meet a costs order, should your client be successful in the proceedings."
5. On 7 February 2019, the solicitor for Number One responded (CB 43): "We requested certain financial documents. We note they have not been provided. In such circumstances we can only assume that those documents will not assist in showing that your client will be able to satisfy any costs order. Our request for those documents was to try and avoid the cost to the parties of an application, which practitioners are bound to do. In the absence or the provision of the documents requested, or adequate security being offered by close of business on Tuesday next, we will advise our client to file the aforementioned motion, in which we will also seek an order for costs on an indemnity basis due to the apparent refusal to provide the information requested."
6. On 12 February 2019, Florida Kitchens' solicitor responded: "1. We reiterate our client's position as previously espoused, and which we again repeat as follows: i.. Our Client's Appeal has merits and prospects of success. ii. The Appeal raises, amongst other things, important issues of public interest. iii. Our client had no problem in paying under protest and whilst reserving its rights the sum of $20,130.00 to your client, and which out client is seeking back. iv. The appealed decision involves amongst other things, a matter of lack of jurisdiction by NCAT, having regard to the determination made. v. If you recall, our client was attempting to resolve the matter on a commercial and without prejudice basis, and made an offer to your client, and which your client is well aware of and as result of our client's financial ability, and your client had unreasonably rejected it. vi. A tax invoice was sent to your client through your office in March 2017, after our client has obtained a costs order against your client in the Local Court proceedings, to which your client has failed to pay, or object to and/or apply to asses, to date. 2. You are not to make any assumptions as alleged in your aforesaid email. 3. Our client is under no legal obligation to deal with your client's unreasonable and unjustified request, in light of the above, and having regard to your client's clear failure in identifying the grounds and/or basis for their alleged concerns. We assume that you, as a practitioner, should not expect litigants to simply provide confidential details to their opponents in the litigation on the mere and unsubstantiated basis of an unexplained and unjustified concern This email together with previous correspondence will be relied upon in seeking costs on an indemnity basis."
7. Number One's solicitor, David Simons, deposed that he has found no evidence that the plaintiff has any assets or is trading profitably. A copy of an ASIC search of Florida Kitchens Pty Ltd dated 13 February 2019 reveals that the director and secretary is Andre Elias. Despite numerous letters to Florida Kitchens' solicitor, no profit and loss reports or balance sheets for the financial years ending 30 June 2017 and 2018, or bank statements from the period of 1 July 2018 to date for any bank accounts operated on behalf of Florida Kitchens, have been provided to Number One.
8. The final step taken by the solicitor for Number One was to serve a subpoena on Florida Kitchens and its solicitor seeking the profit and loss reports and balance sheet for financial year ending in 30 June 2018, and bank statements for the period from 1 July 2018 to 20 February 2019 (CB 304).
9. A copy of the subpoena issued to Florida Kitchens and a one-page document were produced to the Court. The documents reads: "NO PROPER SERVICE NO CONDUCT MONEY NO DOCUMENTS"
10. The subpoena was served upon (or at least came to the attention of) Florida Kitchens, because it forwarded documents to the Court.
11. As can be seen, there is a dispute concerning the requirement to supply conduct money. Counsel for Number One submitted that no conduct money is required for documents to be produced. Counsel for Florida Kitchens says that conduct money is required. While this issue is not germane to whether or not security for costs should be provided, I shall briefly mention it as there is an ambiguity contained on the New South Wales Government Justice Law Access website.
12. Counsel for Florida Kitchens referred to the section on the website titled "Subpoenas - Step by step guide". Under the heading "Step 2: Fill out the subpoena form", it states: "Step 2: Fill out the subpoena form If you need documents or other evidence for your case, you can get the evidence by using a Subpoena to Produce. You need to clearly describe which document or documents have to be provided. For more information, see Sample Subpoena for Production. …" Under the heading "Step 4: Serve the subpoena", it states: "Step 4: Serve the subpoena … When you serve the subpoena you must also give the person or organisation you are serving with the subpoena some money, called 'conduct money'. The amount to be given for a Supoena to Produce is not specified but must be reasonable. Many organisations will have a set amount for conduct money. You should contact the organisation before serving the subpoena to make sure you provide enough conduct money. …"
13. In Hall v Donlon [2011] NSWSC 1088, in relation to the issue of a subpoena for production, Brereton J stated at [5]: "… the absence of agreement or payment of costs and expenses of compliance is not a legitimate objection to production of documents in compliance with a subpoena. The court is given a discretion to order an issuing party to pay the amount of any reasonable losses or expenses incurred by the addressee in complying with the subpoena [UCPR, r 33.11]. Ordinarily, that question is determined after compliance with the subpoena, when the addressee has incurred expenses [ Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253, [15]]. In Re Bauhaus, Austin J observed (at [16]) that whilst UCPR, r 33.11, does not expressly state that the Court has jurisdiction to entertain an application for an order to be made prior to the addressee incurring expenses, the Court may, under its inherent jurisdiction, have such jurisdiction which might be exercised in circumstances where the amount to be incurred will be substantial when compared with the resources of the addressee and/or there is doubt about the ability of the issuing party to meet an order for recovery of such expenses. No application was made under this rule. This objection was not a proper basis for resisting compliance."
14. As is set out above, conduct money is not required to be tendered on the service of a subpoena to produce documents pursuant to UCPR 33.11. Ordinarily that question will be determined after compliance with the subpoena, when the addressee has incurred expenses. The step by step guide to issuing subpoenas in relation to the obligation to pay conduct money does not differentiate between a subpoena to give evidence and one to produce documents. So the failure to tender conduct money when the subpoena was served is not a valid objection. That leaves the answer to the subpoena as "NO DOCUMENTS".
15. Despite letters addressed to Florida Kitchens' solicitor and a subpoena addressed to Florida Kitchens served upon it and its solicitor, Florida Kitchens failed to produce the profit and loss reports or balance sheets for the financial years ending 30 June 2017 and 2018 and bank statements the period from 1 July 2018 to date for any bank accounts operated on its behalf.
16. Florida Kitchens further submitted that it had no difficulty in paying the sum of $ 20,130.00 to Number One under protest and while reserving its rights, and which Florida Kitchens is seeking back as part of its orders on appeal. It attempted to settle the proceedings on a commercial basis, and offered to make payment to Number One on a without prejudice basis, which Number One rejected. It also rendered an invoice to Number One seeking payment of a costs order in its favour in the sum of $29,000. If Florida Kitchens had the bill of costs assessed it would be markedly reduced. The bill had not been prepared in accordance with the costs order actually made. However, against that, Number One has two costs orders in its favour. Its costs of the hearing before the Tribunal Member are to be paid by Florida Kitchens on an indemnity basis.
17. Florida Kitchens also submitted that the solicitor for Number One failed to produce, apart from an ASIC company search, any of the public searches records which he carried out or could have carried out in relation to the assets of Florida Kitchens. Therefore, the solicitor's statement in p 14 of his affidavit dated 20 February 2019 is inaccurate in stating that he "found no evidence that the plaintiff has any assets". It is not sufficient to prove simply that Florida Kitchens is a corporation.
18. I agree that the onus is on Number One to establish that there is reason to believe that Florida Kitchens will be unable to pay costs of Number One if ordered to do so. In this case, despite numerous letters, Florida Kitchens and/or its solicitor have refused to provide any of the financial records requested, and have not offered any security for costs. In these circumstances, the solicitor for Number One, Mr Simons, believes that Florida Kitchens has no assets to satisfy any costs order, or at least does not reveal any assets. It is his concern that Florida Kitchens will not be able to pay Number One's costs of defending these proceedings.
19. Florida Kitchens' failure to provide any evidence of its financial position, despite being served with a subpoena, leads me to believe, on the balance of probabilities, that there is reason to believe that Florida Kitchens will be unable to meet the costs of Number One if ordered to do so.
20. The threshold issue has therefore been satisfied. I will now turn to consider all the circumstances of the case.
21. In Meltglow, Beazley J stated: "The law is now settled that the discretion to order security for costs is unfettered and should be exercised having regard to all the circumstances of the case without any predisposition in favour of the award of security.... Notwithstanding the broad unfettered discretion with which the court approaches an application for security for costs, there are a number of well established guidelines which the court typically takes into account in determining any such application. They are: 1. That such applications should be brought promptly... 2. That regard is to be had to the strength and bona fides of the applicant's case are relevant considerations... As a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary, the court should proceed on the basis that the claim is bona fide with a reasonable prospect of success. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim... 4. Whether the respondent's application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate... This factor is related to the next, namely: 5. Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security... 6. An issue related to the last guideline is whether persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking ... 7. Security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves and thus forced to litigate."
22. I will not consider the application of these principles to the present case.

(1) The application should be brought promptly

1. There is no dispute that the application for security for costs was brought promptly.

(2) The strength and bona fides of Florida Kitchen's case

1. I have reviewed Florida Kitchens' submissions on appeal to the Appeal Panel and the 106 grounds seeking leave to appeal in this court. They are much the same, only they contain more grounds than were raised before the Appeal Panel. Florida Kitchens submitted that the appeal has merits and good prospects of success, and refers to the summons. I disagree. I have carefully read the decision of the Appeal Panel and considered its decision. I have earlier set out the issues canvassed by the Appeal Panel. It is my view that the application for leave to appeal has poor prospects of success.

(3) Whether the plaintiff's impecuniosity was caused by Number One's conduct

1. There are no submissions made by Florida Kitchens on this topic. Hence there is no evidence that the plaintiff's impecuniosity was caused by Number One's conduct.

(4) Whether the application is oppressive and is used to deny an impecunious plaintiff the right to litigate

1. Florida Kitchens made no submissions on this topic. Hence there is no evidence that the application is oppressive. Neither does the application stifle Florida Kitchens' right to litigate.

(5) Whether there are persons standing behind the company who are likely to benefit from the litigation and willing to provide the necessary security

1. While there is no evidence of Florida Kitchens' assets, it has paid the verdict moneys and the filing fee in this Court. However, it appears that they were not paid by Florida Kitchens but by an unidentified third party.

(6) Whether persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking

1. There has been no personal undertaking from any person standing behind Florida Kitchens.

(7) Whether the party is, in substance, a plaintiff

1. It is Florida Kitchens, the plaintiff, who is seeking leave to appeal. For the purposes of this application, I am prepared to accept that it is the party who is, in substance, the plaintiff.
2. In the exercise of my discretion, taking all the above factors into account, they are overwhelmingly in favour of granting an order for security for costs.

Quantum of security

1. I now turn to the final issue to consider, and that is to determine the appropriate amount of security that should be provided.
2. Number One's solicitor, David Simons, was admitted to practice as a solicitor in the Supreme Court of New South Wales in February 1998. Since his admission, he has specialised in debt recovery and commercial litigation. He started SR Law in 2005 and has been the legal practitioner director since that time (Aff 20 February 2019, paras [16]-[17]).
3. Mr Simons has been involved in a substantial number of proceedings in the Local, District and Supreme Courts of New South Wales, NCAT, the NSW Court of Appeal, the Federal Circuit Court, Federal Court and a case in the High Court of Australia ([18]).
4. He has acted for clients by: 1. preparing assessments of party and party bills of costs in New South Wales Courts and taxation of costs in the Federal Courts; 2. reviewing and opposing bills of costs assessments of party and party costs in New South Wales Courts and taxation of costs in the Federal Courts; and 3. obtaining assessments of taxation of party and party bills of costs ([19]).
5. Mr Simons has read the summons seeking leave to appeal and noted there are over 70 grounds of appeal, with ground 1 containing 36 sub grounds of appeal. The sheer number of grounds of appeal will mean that a substantial amount of work will have to be undertaken to deal with the summons.
6. Mr Simons will be undertaking all the solicitor work personally in this matter. His charge-out rate is $500 per hour ex GST. Counsel's fees are $500 per hour and $5,000 per day ex GST.
7. Mr Simons' estimate of Number One's costs of the proceedings are as follows: Work Done Estimate Perusal and consideration of summons seeking leave to appeal Counsel - 8 hours - $4,000.00 Solicitor - 6 hours - $3,000.00 Three directions hearings Counsel - $2,250.00 Perusal and consideration of plaintiff's submissions Counsel - 8 hours - $4,000.00 Solicitor - 6 hours - $3,000.00 Drafting submissions Counsel - 24 hours - $12,000.00 Solicitor - 8 hours - $4,000.00 Perusal and consideration of plaintiff's submissions in reply Counsel - 8 hours - $4,000.00 Solicitor- 6 hours - $3,000.00 Responding to and preparing court books Counsel - 4 hours - $2,000.00 Solicitor - 8 hours - $4,000.00 Preparation for hearing Counsel - 8 hours - $4,000.00 Solicitor- 4 hours - $2,000.00 Hearing day Counsel (1 day) - $5,000.00 Solicitor (1 day) - $4,000.00 Conferences with client Counsel - 4 hours - $2,000.00 Solicitor - 4 hours - $2,000.00 General correspondence with Solicitor - 8 hours - $4,000.00 solicitor for plaintiff Perusal and review of plaintiff's affidavit Counsel - 6 hours - $3,000.00 Solicitor- 4 hours - $2,000.00 Preparation of defendant's affidavit evidence Counsel - 3 hours - $1,500.00 Solicitor - 10 hours - $5,000.00

1. Mr Simons estimates that on assessment, Florida Kitchens would be awarded 75% of the DS costs, 90% of counsel's costs and all the other disbursements. That being the case, the costs for which Number One seeks security total $66,375.00, which consists of DS costs in the amount of $27,000, and counsel's costs in the amount of $39,375.
2. Counsel for Florida Kitchens does not agree with the Number One's estimate of costs, as the costs estimated appear amongst other things to be excessive, unreasonable, duplicated and involve works already done in the NCAT Appeal and which Number One sought its costs for, with Number One's application for the costs of the appeal being refused by the NCAT Appeal Panel. However, it has not put on any evidence as to the amount of the costs it thinks is appropriate. Nor did it make any submissions in relation to the actual form of the orders sought. There are two costs orders outstanding, one in favour of each party. The costs order in favour of Florida Kitchens relates to an amendment to the statement of claim. The costs order in favour of Number One is for the costs before the Tribunal Member. The costs are payable on an indemnity basis. The amount of those costs (once both parties' bills are assessed) will far outweigh the amount of costs that Number One will be obliged to pay.
3. I take into account that Florida Kitchens has raised excessive grounds of appeal, for which leave still needs to be granted. For Number One to prepare to answer Florida Kitchens' case, it will require extensive time and cost for the modest amount in dispute of $20,130. Number One's solicitor's estimate of costs does not seem to be excessive and unreasonable. My view is that an appropriate amount for security for costs is $40,000.
4. I make the following orders. Florida Kitchens is to provide security for costs to Number One in the sum of $40,000. While Number One sought that Florida Kitchens pay this sum in 28 days, in my view should be permitted two months to do so. If security for costs is not provided by Florida Kitchens the proceedings are stayed until further order of the Court. If Florida Kitchens has not complied with order (1) within two months of the staying of the proceedings, then the proceedings are dismissed and the plaintiff is to pay the defendant's costs of the proceedings.

Costs

1. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the costs of the defendant's notice of motion on an ordinary basis.

The Court orders that: (1) The plaintiff is to provide security for costs to the defendant in the sum of $40,000. (2) If security for costs is not provided by Florida Kitchens, the proceedings are stayed until further order of the Court. (3) If order (1) has not been complied with within two months of the staying of the proceedings, then the proceedings are dismissed and the plaintiff is to pay the defendant's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2019