8 Mr Keesing of counsel, appearing for the respondent, relies on several factors in support of the respondent's application for a security for costs order. The respondent contends first that the applicant's substantive application under s 106 has little prospects of success. In particular, the respondent relies upon an aspect of the applicant's case which concerns the working relationship, the subject of the substantive application. This relationship consisted of a partnership between the applicant and his wife and the respondent company. This suggests, according to the respondent, that the relationship was not one of employment, so that various entitlements sought in the amended summons by way of long service leave, annual leave and superannuation are not maintainable. Secondly, the respondent contends that the applicant has limited assets. Apart from some motor vehicles, drum kits and telescopes which are of insignificant value, the only other evidence of an asset is the joint bank account the applicant holds with his wife in the sum of approximately $50,000. The applicant has admitted in cross-examination that his wife could access that account and remove the money at any time. The applicant has no assets within the jurisdiction of New South Wales. Thirdly, the memorandum is a champertous agreement as it clearly indicates an arrangement between the applicant and a third party to fund him in the substantive proceedings. The agreement is with a direct competitor of the respondent which sees itself gaining a benefit in maintaining the action. Because the applicant's litigation is being funded by a third party, settlement is unlikely. These considerations give rise to exceptional circumstances which warrant the application being granted. Fourthly, the applicant is ordinarily resident outside the jurisdiction in Tasmania, which is a further step adding, "costs to the recovery of costs". Fifthly, the respondent contended that if its application was granted there would be no prejudice to the applicant. The applicant is not impecunious and an order for security for costs would not impede the applicant's ability to litigate his case. Indeed it is a condition of the memorandum of understanding between the applicant and Wide Span that the applicant proceed with his application under s 106. Finally the respondent emphasised as a matter of some significance to its application that the applicant had not offered the Court an undertaking that he would not dissipate the moneys deposited into the joint account with his wife until the proceedings have been determined.
9 The applicant responded by offering to give the Court an undertaking in relation to the joint bank account. The offer was withdrawn some minutes later after the respondent refused to make any concessions in relation to it unless the applicant agreed to undertake that he had access to the whole of the amount in the joint bank account, and, he was prepared to give a further undertaking that he would send the respondent monthly bank statements in relation to the account. The applicant also contends that he has a strong case. In the amended summons the applicant relies upon the failure of the respondent to provide for reasonable remuneration as one of the indicia of unfairness in the terms of the contract. After his employment was terminated the applicant commenced employment at Wide Span at twice the remuneration he was paid by the respondent which itself suggests that he was under-remunerated while working for the respondent. There is also, according to the applicant, credible evidence that the applicant has the ability to pay a costs order, although he does not "have a surfeit of assets". He does, in addition, earn $200,000 annual salary. In relation to the memorandum between the applicant and Wide Span, the applicant contends that it can have no relevance to the respondent's application. There is nothing unique about a former employee going to work for a competitor of the employee's former employer. The document does not reveal some ulterior motive, it is simply evidence of a loan. The applicant has been resident in Tasmania for some seven years. During a substantial part of that period he worked for the respondent. There is therefore no suggestion that the applicant left the jurisdiction for an inappropriate purpose such as to avoid a costs order. Nor do enforcements of judgments interstate pose an additional difficulty that might be encountered in New South Wales. Another factor against the granting of the respondent's application according to the applicant is the delay on the part of the respondent in bringing its application. In contending to the contrary on this issue the respondent pointed out to the Court that the amended summons had not been filed until 28 September 2006 and that further amendments to the summons are now sought by the applicant by way of notice of motion which seeks to add Mr McFadden as a second respondent to the application.
Consideration