Hurworth Nominees Pty Ltd & 2 Ors v ANZ Banking Group Ltd & 1 Or [2005] NSWSC 1360 | Case summary

50141/99 Hurworth Nominees Pty Ltd & 2 Ors v ANZ Banking Group Ltd & 1 Or JUDGMENT 1 HIS HONOUR: These are applications pursuant to s 1335 of the Corporations Act 2001 (Cth), or rule 42.21(d) or (e) of the Uniform Civil Procedure Rules 2005 (NSW), that the plaintiffs provide security for costs of the defendants. 2 The first defendant, whom I will call "ANZ" or "the bank", seeks security in the amount of $223,680. 3 The second defendant, whom I will call "Mr Star" or "the receiver", seeks security in the sum of $210,000 with liberty to apply if costs in that sum are exceeded. 4 In the case of both defendants, the sums for which security is sought are the party and party costs for the future conduct of the litigation estimated to be recoverable on an assessment. Both defendants submit that security should be in the form of a bank guarantee. 5 The proceedings arise out of advances made by the bank to the plaintiffs, or to the third plaintiff, Hi Form Feeds Pty Limited, in connection with the grain cropping on farm properties known as Lilydale and Glenview, a grain storage facility at Balldale, all of these properties being near Corowa, New South Wales, and related stock feed production at a plant at Wodonga in Victoria. 6 An internal bank memorandum in 1996 records that the businesses traded poorly during the drought years to 1995, and that between 1993 and 1995 there was a steadily deteriorating relationship between the bank and its customer. 7 Following a mediation pursuant to the Farm Debt Mediation Act 1994 (NSW), it appears that a deed was entered into on 28 March 1996. The deed was not in evidence on the present application, but it appears from other material that it was a term of the deed that the plaintiffs were required to make staged payments, the first of which, in the sum of $58,000 was due on 30 April 1996. The payment was not made. On 14 May 1996 the second defendant, Mr Star, was appointed as receiver and manager to the companies in the group. 8 The bank, in its defence, admits that as mortgagee it entered into possession of the property known as Lilydale on 6 June 1996, and sold that property in the exercise of its powers as mortgagee on 14 February 1997. 9 On 25 June 1999, Mr Star retired as receiver and manager of the plaintiffs. 10 These proceedings were commenced on 19 November 1999. The first plaintiff, Hurworth Nominees Pty Limited, was the registered proprietor of Lilydale. It had guaranteed the debts of the third plaintiff, Hi Form Feeds Pty Limited, and given a mortgage and charge in favour of the bank. It was, and I infer still is, the trustee of two family trusts known as the D L Johnston Family Trust and the J A Johnston Family Trust. 11 The second plaintiff, Lillyhill Pty Limited was the registered proprietor of Glenview and the trustee of a trust known as the Lillyhill Trust. 12 Hi Form Feeds Pty Limited is alleged to have carried on business as a stock feed and grain merchant and it appears to have been the principal borrower. It has been described as a trustee of a trust known as the Hi Form Feeds Unit Trust. 13 In its summons, the plaintiffs make claims and seek relief which can be put into four categories. First, they seek an account from the bank, as mortgagee in possession of Lilydale, and from Mr Star as receiver and manager of the plaintiffs. Secondly, they allege that the first defendant charged interest at a rate of up to 14.4 per cent per annum on a principal sum of $2,060,875.04, whereas they claim that it was agreed at the time of entering into the deed of 28 March 1996 that interest would be charged at a rate of 11.25 per cent per annum. They say the additional interest and principal charged to the plaintiffs was $90,051. 14 In its defence, the bank does not specifically traverse these allegations and, accordingly, I think they should be treated as admitted. 15 Thirdly, the plaintiffs contend that the receiver sold stock feed at an undervalue, and that he wrongly refused to harvest and process corn and other crops. The plaintiffs allege that the receiver allowed baled hay at Wodonga to go to waste, that he allowed the Lilydale property to go to waste, that he sold the Glenview property and parts of the Balldale property at an undervalue. The plaintiffs contend that the receiver allowed the Wodonga property to go to waste and that he sold it, and the plant and equipment at that property, at an undervalue. The plaintiffs also allege that the receiver wrongly incurred expenses by unfairly dismissing employees and by terminating leases for which compensation had to be paid. 16 The fourth category of the plaintiffs' contentions is that they say that the default which triggered the appointment of the receiver was itself triggered by the bank's breaching an agreement which they allege it had made with the plaintiffs. 17 The plaintiffs contend that it was known by both parties that the plaintiff proposed to make the instalment of $58,000 of interest and reduction of principal due on 30 April 1996, by selling a lot in a subdivision at Balldale. As the bank had a mortgage over the property, its consent to the sale was needed. The plaintiffs contend that the bank had agreed to the sale. Although not yet pleaded, I infer from the evidence which was read on this application that the plaintiffs will also say that it was an express or implied term of the deed of 28 March 1996, that the bank's consent to the sale of the lot in the subdivision was not to be unreasonably withheld. The plaintiffs allege that the bank wrongly refused its consent to the sale and that this precipitated the default and subsequent losses which attended the forced sales through the receivership. Indeed, the plaintiffs go further and contend that the bank's consent was deliberately withheld so as to bring about the situation where it could appoint a receiver. 18 As I have said, these proceedings started in 1999. There are reasons, however, as to why the present application was not made until December 2005. 19 Immediately after the proceedings were filed, the defendants sought a stay and applied for security for costs. After various interlocutory processes involving the issue of subpoenas, those applications were dealt with by Hunter J on 26 April 2001. There had been earlier proceedings commenced by the plaintiffs and Mrs Phyllis Jean Johnston which were discontinued. In those earlier proceedings, Rolfe J granted leave to discontinue on condition that new proceedings not be brought on substantially the same allegations until the order for costs in the earlier proceedings had been satisfied. On 26 April 2001, Hunter J stayed the present proceedings until the costs of the earlier proceedings were paid. 20 His Honour said that that order would not determine the applications for security for costs which would have to await litigation at a later time. There were, it seems, extensive delays in the obtaining of a determination of the costs payable in the earlier proceedings and of the application to Hunter J, and extensive delays in the making of payment. It was not until 26 August 2005 that all of the outstanding costs and interest were paid. Hence, the defendants cannot be, and have not been, criticised for delaying in making the present application. Understandably however, in the circumstances, their application is limited to security for future costs. 21 Although the proceedings have progressed little beyond the filing of a summons and defence, the plaintiffs, but not the defendants, have filed numerous and extensive affidavits in the various interlocutory processes which appear substantially to provide the evidence upon which they will rely in their claim for final relief. Many of those affidavits were read on the present application. 22 It is proposed that the allegations and the summons will be amended or reformulated in a statement of claim. 23 Having regard to the extent of the matters canvassed in the affidavits read by the plaintiffs, the need for amendment or reformulation of the summons, and the present stage of the proceedings, it appears to me that, subject to one qualification, the estimates given by the defendants about the likely recoverable party and party costs are reasonable and should be accepted. The qualification is whether or not the estimates contain an unwarranted duplication of costs. 24 The receiver and the bank initially had the same representation. Subsequently the receiver was separately represented. I am told that the justification, and I assume the reason, for this, is because allegations are made against the receiver in the summons of a serious kind which, if established, could seriously affect his professional reputation. In those circumstances, one can readily accept that separate representation of the receiver is justified. But, having said that, there are likely to be many matters to be done in the preparation of the proceedings for hearing where the defendants have a common interest. I consider there is some element, but one which cannot be precisely quantified, of duplication in the estimated costs for preparation of the matter for trial, which could be avoided. 25 Under s 1335 of the Corporations Act, for the Court to have jurisdiction to order security for costs, it must appear, by credible testimony, that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his or its defence. (See to similar effect rule 42.21(d) of the Uniform Civil Procedure Rules). This is not an exacting standard. (See Beach Petroleum NL v Johnson (1992) 7 ACSR 203 at 205). The question of the ability of the plaintiffs to meet a costs order is more problematic in this case than most because it appears that there are no current balance sheets or profit and loss accounts for the plaintiffs. Nor were any previous financial statements tendered. 26 To make out the ground for ordering security under s 1335 and rule 42.21(d), the defendants point to the fact that each of the plaintiffs have issued capital of $2.00. I consider that to be irrelevant. The question is not what capital the defendants issued, but what they now have. 27 The next matter is that the plaintiffs are each trustees. There is no evidence of the financial position of each trust. Although the trust deeds were not in evidence, there is no reason, I think, to doubt that the plaintiffs will be entitled to be indemnified out of the trust assets in respect of any liability they may incur to the defendants for costs. 28 The only evidence as to the plaintiffs' current financial position and that of the trusts, of which they are trustee, was that of Mr Johnston. He is the director of the plaintiffs and the person who controls their affairs. He deposes that the plaintiffs have current assets totalling $305,000. 29 However, there was no corroborative detail of those assets, except in general terms. Mr Johnston deposed to one of the plaintiffs having current assets, including investments, book debts and cash, of in the order of $270,000. There was also evidence of some plant and equipment, and equipment used to operate an office and consultancy business, which, together, brought its estimate of the plaintiffs' assets to the sum I have mentioned. 30 There was no evidence as to the liabilities of the plaintiffs, save that I understand that the estate of the late J A Johnston is a creditor of a trust in the sum of about $250,000. The bank did not seek to establish that it was a creditor of any of the plaintiffs, although there was evidence that it has charges over assets of the plaintiffs which have not been discharged. There was also evidence from documents filed by the receiver at the conclusion of the receivership with the Australian Securities and Investments Commission, that, at the conclusion of the receivership, the plaintiffs were indebted to the bank in the sum of $1,280,031.35. 31 As I have said the bank did not seek to establish what was the quantum of any debt currently owed to it. The receiver's accounts stated that the amount owing at the date of their appointment was $2,006,845. This apparently was the amount of the debt stated in the deed of 28 March 1996. 32 The receiver's accounts stated that in the case of Lillyhill Pty Limited, the receiver had obtained receipts of $1,133,056.34, in the case of Hurworth Nominees Pty Limited, he received $1,310,400.46, and in the case of Highform Feeds Pty Limited he received $41.32. 33 It appears from the pleadings that the debt of $2,060,875 was the debt owed by all of the plaintiffs, I assume jointly and severally. It is clear from the defence that the receipts recorded in each of the forms filed with the ASIC should be aggregated. In those forms, the receipts from one company have not been credited to the others. Indeed, the defence pleads that the receiver collected $2,447,915.03 during the course of his appointment. 34 It appears that the receiver was paid $254,911.14 as his fees and remuneration. The plaintiffs submitted that it followed that there was an amount of about $110,000 in interest owing by the bank to the plaintiffs, this being the difference between the debt of $2,060,000 and the receiver's collections, less the sum of $254,911.14. I do not accept that this result follows. It ignores the interest on the debt of $2,060,000 from April 1996 to June 1999 and any legal costs incurred by the bank or the receiver properly charged to the plaintiffs, as well as any additional fees or remuneration of the receiver. 35 Having said that, the material before me does not justify a conclusion that the plaintiffs were indebted to the bank as at June 1999 in the sum of about $1,280,000. There is no explanation as to how such a debt could have arisen. Accordingly, in trying to form a picture as to the plaintiffs financial position, in the absence of evidence from the bank as to what debt, if any, is owed to it, I think that the suggestion that there is such a debt should be put aside. Nor do I draw a conclusion adverse to the plaintiffs about their financial position from their failure to produce accounts. Clearly the financial position of the plaintiffs depends upon what debt, if any, they owe the bank and what amounts, if any, are owed to them at the conclusion of the receivership and the conclusion of the period in which the bank was in possession of the mortgaged property. 36 No accounts, or at least no detailed accounts, appear to have been provided by the bank or the receiver. In the absence of accounts identifying each item of expenditure and receipt by the receiver and the bank as mortgagee in possession, it would not be possible for the plaintiffs to prepare accurate financial statements. Therefore, the only material on which to assess the issue of whether there is reason to believe that the plaintiffs will be unable to meet an order for costs is the following: 37 First, although the plaintiffs were represented before me by Mr Johnston, it is possible, and, indeed, it is to be hoped, that they will have legal representation at a hearing and in the preparation of their pleadings and the conduct of the matter before trial. Such legal representation will come at a cost, which will eat into the plaintiffs' available assets. 38 Secondly, the only evidence of available assets suggests that they are not worth more than $305,000. I am referring to the assets of the plaintiffs themselves. 39 Thirdly, there was a lengthy delay before costs previously ordered to be paid were paid, although it is not clear to me to what extent the delay may have been contributed to by a delay in the obtaining of a certificate of determination of the costs payable. 40 Fourthly, the estimate of future recoverable party and party costs of both defendants is about $130,000 more than the estimate of available assets, even if there are no creditors of the companies, or if such creditors as there are defer their debts. This is without taking into account the likely consumption of some of those assets in paying for legal representation in these proceedings. 41 Whilst I think there is an element of duplication in the defendants' estimate of costs which should not be visited on the plaintiffs on this application, nevertheless, having regard to the undemanding test of Beach Petroleum, I think that it is reasonably possible that the plaintiffs will be unable to pay the defendants costs if judgment goes against them. 42 However, when considering whether any and, if so, what security should be ordered, it is relevant that the plaintiffs' financial position is by no means clear and that lack of clarity appears to be due, in no small measure, to the fact that the defendants have not given a detailed account of their receivership and their possession as mortgagee to the plaintiffs. Nonetheless, I conclude that the ground for ordering securities for costs under s 1335 of the Corporations Act and rule 42.21(d) of the Uniform Civil Procedure Rules is made out. 43 It is unnecessary to consider whether the ground in rule 42.21(e) is also made out. No separate argument was addressed to the question of whether the fact that the plaintiffs are trustees means that they are not suing for their own benefit but for the benefit of some other person. I will assume that all of the jurisdictional grounds upon which the defendants rely on their application for security have been made out. I turn to discretionary considerations. 44 Counsel for the receiver helpfully summarised the position in their written submissions thus: "15. No individual discretionary factor is decisive. The discretion is wide and unfettered. What should be done in each case depends entirely on the circumstances of the case the governing consideration being what is required by the justice of the matter. See Seventy Fourth Wreath Pty Ltd v Wilbow Corporation Pty Ltd (unreported, FCA, Marshall J., 15/9/98; BC9804687), at BC page 4; cf. Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502, at page 513 [26(1)] 16. Nevertheless, in Equity Access Pty Ltd v Westpac Banking Corporation (1989) ATPR 40-972, at page 50,635, Hill J identified the following six factors as relevant to the exercise by the Court of the discretion (see also Drumdurno Pty Ltd v Braham (1982) 42 ALR 563): (a) the chances of success of the Plaintiffs; (b) the quantum of risk that the Plaintiffs cannot satisfy an order for costs; (c) whether an affirmative exercise of the discretion would shut out a small company from making a genuine claim; (d) whether the impecuniosity arises out of the conduct in respect of which relief is sought by the Plaintiffs; (e) whether there are aspects of public interest which weigh in the balance; (f) whether there are any particular discretionary matters peculiar to the circumstances of the case. " 45 The plaintiffs contended that they had a strong case, that to the extent that they were impecunious, such impecuniosity arose from the conduct in respect of which they seek relief from the defendants, and that if the security sought were ordered it would delay, and might shut out, the plaintiffs from bringing their claim and would, in any event, occasion unwarranted hardship. 46 There is always a difficulty in assessing the strength of a plaintiff's case on a security for costs application, particularly where the defendant has not filed affidavits in the principal proceedings. 47 An application for security for costs is not a mini-trial of the main action. Nonetheless, I think it is clear that there are serious questions to be tried on each of the plaintiffs' claims. Further, insofar as the plaintiffs claim an account, on the present state of the pleading, they have a strong case. 48 Dealing first with their plaintiffs' claim for account, the bank was mortgagee in possession of Lilydale from 6 June 1996 until the property was sold. A mortgagee who, as such, goes into possession of the mortgaged property is bound to account to the mortgagor. (See generally Fisher and Lightwood's Law of Mortgage, Australian edition, paragraphs 19.39 and 39.21). Moreover, under s 421(1)(d) of the Corporations Law, being the relevant legislation in force between 1996 and 1999, a controller of property of a corporation, (which includes both a receiver and a mortgagee in possession), was required to keep such financial records, as correctly recorded, and explained all transactions that the controller entered into as controller. A director, creditor or member of the corporation to which the controller was appointed was entitled, unless the court otherwise ordered, to inspect such records. (See s 241(2)). Controllers were required to lodge accounts in accordance with s 432. 49 In paragraphs 11, 12, 13 and 15 of the summons, the plaintiffs plead that the companies, by their directors, had sought details of financial transactions and receipts of assets sold and that the defendants had refused to supply the details and have referred the companies to information which had been supplied to ASIC. 50 The plaintiffs allege that this information was not the full and complete list of the assets sold by the receiver and not all of the assets sold have been set out in the information supplied to ASIC. 51 They allege that the defendant: "… refuses to give to the companies all the bank statements which show receipt of monies paid to it and has refused to provide explanations for entries in the accounts that were provided."

55 The receiver's accounts which are in evidence are, as I have said, doubtful and unhelpful. It does not appear what justification the defendants have for the position taken in relation to their obligation to account. As I said earlier, it is relevant, in the exercise of the discretionary power, to order security for costs, where the ground for doing so is the apparent impecuniosity of the plaintiffs, that the party seeking security should have refused to provide accounts which are necessary for the obtaining of a proper understanding of the plaintiffs' financial position. 56 The second class of claim in the summons relating to the overcharging of interest appears on the pleadings to be admitted, but the consequences of that are unclear in the absence of account. When I say they appear to have been admitted, as I made clear earlier, they are in my view admitted by the failure of the defendants to traverse specifically the allegations made. 57 It is not possible to form a view as to the strength of the plaintiffs' third claim alleging waste, or failure by the bank as mortgagee in possession, or failure by the receiver, to exercise powers in accordance with s 420A of the Corporations Law. That section is not specifically pleaded. But the allegation, if substantiated, would indicate a breach of the section. In interlocutory proceedings on 25 November 1996 Hodgson J, (as his Honour then was), said that the evidence before him showed a serious question to be tried as to whether the receiver had been in breach of his duty in relation to the realisation of costs. On the plaintiffs' evidence, read on the present application, I am satisfied that there is a serious question to be tried in relation to the third issue. 58 However, there may be difficulties in the way the proceedings are presently instituted. In substance, the third class of claims raises matters which should properly be raised on the taking of accounts. In essence, the plaintiffs seek to surcharge the receiver or the bank with amounts which the plaintiffs contend ought to have been received, or they seek to falsify expenditure which they anticipate the receiver will claim as proper expenses. However, accounts are not to be taken piecemeal (see Adams v Bank of New South Wales [1984] 1 NSWLR 285 at 296). No argument was addressed in relation to this matter and I do not think it affects the resolution of the present application. But it is a matter to which attention should be given, not only by the plaintiffs, but also by the defendants. 59 As to the fourth claim in the summons, it was submitted for the receiver that the claim could be seen to be weak as it relied upon an alleged oral agreement which, it is said, is inconsistent with the deed the parties entered into. Whilst the pleading is not very clear, I consider that the plaintiffs have shown that there is a serious question to be tried on the fourth claim. 60 It seems to me that the real gravamen of the claim is that it was an express or implied term of the deed of 28 March 1996 that the bank's consent to the sale of a lot in the subdivision would not be unreasonably withheld. The bank was no doubt entitled to withhold its consent unless satisfied that the sale was at a proper market value. There is material which shows that the plaintiffs may be able to establish that the bank's valuer advised its manager that the subdivision was in order, and that the sale price was satisfactory, but that four days later, the bank's manager asserted that he had insufficient information from the bank's valuer to advise whether or not the bank would consent to the sale. There is a serious question to be tried as to whether the bank reasonably withheld its consent. On that question the evidence of what was agreed about the subdivision which was not reflected in the deed would not necessarily be irrelevant. 61 I do not accept the receiver's submission that this part of the plaintiffs' case can be seen to be weak. On the other hand, it is not possible to make any assessment as to the strength of the claim, except that it raises a serious question to be tried. 62 In this case, the apparent impecuniosity of the plaintiffs arises, in my view, from, at least in part, the conduct about which they complain. It is true, as counsel for the bank submitted in the course of his very able submissions, that the plaintiffs faced financial difficulties in 1995 and 1996 before the events which gave rise to these proceedings. Immediate difficulties at that time appeared to have been with cash flow. The present question is what assets and liabilities the plaintiffs have. It is their case that their assets would be substantially greater but for the conduct of the defendants about which they complain. That, as is clear from the authorities, is a relevant consideration in the exercise of the Court's discretion as to whether to order security for costs and, if so, in what form. As Lehane J said in Reches Pty Limited v Tadiran Pty Limited (1998) 85 FCR 514 at 523: "[Counsel] submitted that this is a case where the applicant's impecuniosity results from the conduct, on the part of the respondent, of which the applicant complains:... Where, however, liability is strongly in dispute and where those who stand to benefit, should the applicant succeed, are in a position to provide security, the importance of that matter, as a discretionary consideration, is I think significantly diminished." 63 In my view the person who stands to benefit should the plaintiffs succeed in these proceedings is principally Mr Daryl Lindsay Johnston, the director of the plaintiffs. Although it is his son, and not he, who is the shareholder of the plaintiffs, the plaintiffs are each trustees. It is his evidence, which there is no reason to doubt, that a decision as to what distributions would be made to the beneficiaries of the trusts, should the proceedings be successful, would, with one exception, be made by him. The exception, as I understand it, is that if the litigation succeeds and the trust assets are augmented by recoveries, Mr Johnston's sister, or his sister and her husband, would be entitled, through their inheritance of his late father's estate, to an amount of $250,000. Mr Johnston has also indicated that should litigation succeed and the trust assets be augmented it would be his present intention to make a distribution to his son, Mr Luke Johnston. Mr Johnston is willing to "take personal responsibility for any unpaid adverse costs order, remaining unpaid by the plaintiffs after 28 days have passed following a certificate as to determination of costs being issued by the court." 64 His sister, Mrs Doreen May Blake, and her husband, Mr Kenneth Roy Blake, have expressed themselves willing to contribute $50,000 to the funding of an adverse costs order, provided that the assets of the plaintiffs have been liquidated and paid to reduce the plaintiffs' liability for costs before any calls on them are made. There are obvious difficulties with such a proviso. Not the least of these would be the difficulty in determining when the liquidation of the plaintiff company should be taken to be complete. 65 Mr Luke Johnston has an expectancy under the will of his grandmother, Mrs Phyllis Jean Johnston, and has expressed himself willing to commit that inheritance, if received, to pay an adverse costs order. 66 The defendants submit that what is proffered by those standing behind the plaintiffs' companies is insufficient security. They press for the provision of security by way of bank guarantee. They submit that the evidence does not establish that those standing behind the plaintiffs would not be able to procure bank guarantees in the sums for which security is sought. 67 In Bell Wholesale Co Limited v Gates Export Corporation (No. 2) (1984) 2 FCR 1 at 4 the Full Court of the Federal Court said that: "...a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the [plaintiff] establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or beneficiaries under a trust) are also without means." 68 The Court said that it was not for the party seeking security to raise the matter, but it was an essential part of the case of a company seeking to resist an order for security on the ground that the granting of the security would frustrate the litigation to raise the issue of the impecuniosity of those whom the litigation will benefit and to prove the necessary facts. 69 Here the plaintiffs do not resist the claim for security only, or even principally, I think, on the ground that security would frustrate the litigation. Indeed, as I understood Mr Johnston's closing submissions, it was that if security by way of bank guarantee were ordered, it would further delay proceedings and place the plaintiffs and those behind it in very difficult financial circumstances. He said, and I readily accept, that the plaintiffs themselves would be unable to raise security by way of bank guarantee, and in this respect he pointed to the existing charges held by the bank which have not been released. 70 I can infer from the evidence that neither Mr Daryl Lindsay Johnston, nor Mr Luke Johnston, owns any real estate. Mr Luke Johnston's assets are modest and consist of cash, tools and motor vehicles. There is evidence that the second plaintiff, Mr Luke Johnston, and Mr Daryl Lindsay Johnston, could, with the use of the company's existing assets, earn about $120,000 to $180,000 per year. I can infer from the delay in the plaintiffs being able to raise funds to satisfy the earlier costs order, together with such evidence as there is about the assets of Mr Luke Johnston and Mr Daryl Lindsay Johnston, together with the fact that the bank holds charges over the assets of the plaintiffs which have not been released, that there is at least a substantial risk that the proceedings would be frustrated if an order for security by way of bank guarantee in the amount sought is made. 71 It seems to me that the most important of the discretionary considerations are that:

Hurworth Nominees Pty Ltd & 2 Ors v ANZ Banking Group Ltd & 1 Or

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Judgment (14 paragraphs)

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