In the matter of Felan’s Fisheries Pty Limited [2016] NSWSC 1455

Solicitors: Fraser Clancy (Plaintiff) K & L Gates (First Defendant) HWL Ebsworth (Third to Ninth Defendants) File Number(s): 2015/369226

Judgment

1. On 23 September 2016, I delivered judgment ([2016] NSWSC 1351) ("Earlier Judgment") in respect of an application for security for costs made by the First Defendant, Sydney Fish Market Pty Limited ("SFM"), and the Third to Ninth Defendants in the proceedings who are directors of SFM ("Directors"). I held that an order for security for costs should not be made in favour of SFM, but that the Plaintiff, Felan's Fisheries Pty Limited ("Felan's") should be ordered to provide security for the Directors' costs of defending the proceedings, calculated on the basis set out in my judgment. I directed that the parties bring in agreed orders to give effect to the judgment within 14 days. On 30 September 2016, I made further directions as to the process to be adopted by Felan's and the Directors in respect of the form of orders. Felan's and the Directors were not able to agree aspects of the form of orders to be made and each made further submissions in that respect.
2. The parties agreed as to the amount of security for costs to be provided by Felan's to give effect to the Earlier Judgment, in the sum of $226,375, which my judgment contemplated would be provided on a staged basis.
3. The areas of difference between the parties were, first, the date on which the first tranche of security for costs is to be provided. The Directors proposed that the first tranche of security be provided within seven days of the date of the orders. Since those orders were submitted on 7 October 2016, the earliest date on which security could have been required on that basis was 14 October 2016. The Plaintiff proposed that security be provided by 21 October 2016. This raised a wholly pointless debate over a period of seven days, which would inevitably be, and was, rendered futile by the time which would be required to determine it. Since seven days from the date of delivery of this judgment and the making of the orders set out below would now be 19 October 2016, there is no benefit of any substance to be gained by ordering that the first tranche of security for costs be provided prior to 21 October 2016.