Fortcon Pty Ltd & Anor v Babick & Ors

[2025] VCC 616

County Court of Victoria|2025-05-20

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General information, not legal advice.

At a glance

Source facts

Court

County Court of Victoria

Decision date

2025-05-20

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

For the reasons set out above, I am satisfied that there is reason to believe, based on credible evidence, that the plaintiffs may not be able to pay a costs order in favour of the defendants at the conclusion of the trial. That enlivens my jurisdiction to make an order for security for costs. While there is no general predisposition in favour of making an order for security once the jurisdictional threshold is passed, impecuniosity is itself a significant discretionary factor and often a most significant factor.
I am satisfied there is the risk of injustice to the defendants if no security is ordered and at trial the plaintiffs' claims fail and the defendants are unable to recover costs from the plaintiffs. The plaintiffs have not contended they would be prevented from pursuing their claims by an order for security.
None of the other discretionary factors raised by the parties tip the balance in the other direction. There was a short period of delay in issuing the summons, but this is not said to have caused the plaintiffs any prejudice. I am unable to assess the merits of the claim in circumstances where the plaintiffs stated the claim was to be amended. I give Mr Fortuna's undertaking little weight in circumstances where he has not provided any details in support of the undertaking.
Having regard to those considerations, weighing up the competing interests of the parties, I am satisfied it is appropriate to make an order for security. Having said that, I do not accept the amount of security originally sought by the defendants.

[2]

As noted above, the defendants' original summons sought security for costs incurred prior to the issuing of the summons until the trial, which at that time was listed for 20 May 2025. During the hearing, Mr Andreou conceded that it was open to me to order security only for future costs, from the date of the application (being 25 October 2024). He also conceded that security costs could be ordered up to a certain point in the proceeding and then revisited after that time, rather than an order being made now for security to the trial date.
I will make orders requiring the plaintiffs to provide security for the defendants' costs from the date of the summons (25 October 2024) to the end of mediation (which date is still to be agreed between the parties or ordered). There will be liberty to apply for further security after mediation if the proceeding does not settle.
I note that since the hearing on 18 December 2024, the parties attended a pretrial case management conference on 22 April 2025 with the Commercial Division lawyer and agreed the proceeding was not ready for trial. They agreed to adjourn the trial date from 20 May 2025 to 16 March 2026. My Orders dated 23 April 2025 record that the parties are in the process of discussing further timetabling orders, including dates for amended defences, discovery, subpoenas and expert reports. I also note they do not appear to have attended mediation, which was to have occurred by 28 February 2025. They have not proposed a new date for mediation but this should be included as part of the orders they are currently discussing.
It appears from appears the First Mackay Affidavit that the amount of costs expended prior to 25 October 2024 was $67,183.43.[54] I am unable to assess the amount of costs between 25 October 2024 and mediation until the parties have agreed the new timetable. Accordingly, the parties must provide proposed orders to give effect to these reasons. Once the defendants are able to quantify their future costs to mediation, they should set out their calculations of the amount of security they seek. If they are unable to do so until after the next timetabling orders are made (due to be agreed or determined by 27 June 2025) then they should advise my chambers if they agree that the amount of security should be determined after that date, or if they seek other orders.

Fortcon Pty Ltd & Anor v Babick & Ors

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

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Legislation Cited (3)

Cases Cited (2)