PPK Willoughby Pty Ltd v Baird

Evidence

1. The 2nd to 106th defendants rely upon the affidavits of Lisa Anne Schumacher sworn on 31 August 2018 and 4 December 2018. The 107th and 108th defendants rely upon the affidavit of Holly Morgan affirmed on the same date. Each of these affidavits sets out the basis for their respective calculations of past and anticipated costs in defending these proceedings. The solicitors calculate that they will incur total costs in the sum of $469,200 made up of past recoverable costs of $200,000 and future recoverable professional fees of $269,200. The 107th and 108th defendants calculate that their total costs will be in the order of $1,055,688.60.
2. The plaintiff relied upon the affidavits of Nicholas Kallipolitis sworn 26 November 2018 and Suzanne Maree Ward sworn 29 November 2018 in response to this material. This is referred to below in more detail. However, on at least three often critical issues the plaintiff concedes that there is no contest. The first is that the plaintiff does not dispute the defendants' evidence suggesting that the plaintiff is, or would be, unable to satisfy an adverse costs order in favour of the defendants having regard to its current financial position. The second is that the plaintiff does not contend that any delay associated with the defendants' respective applications, about the nature, extent and significance of which delay there is a contest, was such as to cause any identified prejudice to the plaintiff or to be such as to frustrate or stultify the plaintiff's ability to continue to prosecute these proceedings. The third is that the plaintiff does not contend that its current impecuniosity has been caused by the defendants.

Background

1. The plaintiff is a limited liability company that was incorporated in 2009 for the sole purpose of developing the land that it purchased. Between 2012 and 2017, the plaintiff built dwellings on the land in various stages and sold these off progressively. The defendants were aware that the plaintiff had assets, in the form of the land and the dwellings on it that were in various stages of completion, and that it was selling the completed dwellings in this way. Following the commencement of these proceedings, the lawyers for the parties began to engage in correspondence about the plaintiff's financial position, and the prospect of requiring the plaintiff to provide security for costs arose.
2. At a stage following service by the plaintiff of some of its evidence in the proceedings, the defendants started to become concerned about the plaintiff's ability to meet an adverse costs order. On 17 August 2016, the solicitor defendants wrote to the plaintiff in relation to its financial position. Part of that letter is as follows: "In those Affidavits, your client informed our clients, for the first time since proceedings were commenced in 2012, that the development of the Willoughby Market Gardens site is nearing completion. PPK Willoughby Pty Ltd is a sole purpose entity set up for the development of the Willoughby Market Gardens site. ASIC searches recently performed on behalf of our clients indicate that your client currently only has a paid-up share capital of $2. As such, our clients are concerned that once the development is complete and your client has sold each of the relevant properties the subject of the development, your clients will have no remaining assets from which our clients' costs of the proceedings could be paid in the event that your client did not succeed on its claim against our clients. We have also become aware, from searches undertaken of the Supreme Court list prior to the Directions Hearing in this matter on 5 August 2016, that your client has been separately sued by Midson Construction (NSW) Pty Ltd in proceedings no. 2015/375883. Our clients consider that there is reason to believe that your client will not be able to pay their costs if they are successful in the proceedings, and that our clients are therefore entitled to security for their costs pursuant to Uniform Civil Procedure Rules 2005 (NSW) Reg. 42.21 and/or section 1335 of the Corporations Act 2001 (Cth). … Request for Security In the circumstances set out above, our clients also now: 1. invite your client to provide security for costs forthwith in the sum of $250,000; and 2. request that you provide, by return, an undertaking that your client will meet and pay any costs order made against it in the proceedings. Our clients have incurred in excess of $170,000 in these proceedings to date and we anticipate at least a further $80,000 will be incurred prior to the completion of any trial. If your client believes that any lesser amount should be provided as security for our clients' costs, please set out the basis for that belief and the amount that your client instead considers would be appropriate. Our clients reserve their right to: 1. seek orders against your client for security for costs; and 2. rely on this correspondence in respect of any issue as to costs, including re-listing the matter in order to ensure compliance with our clients' above request."
3. The Crown Solicitor's Office, acting for the 107th and 108th defendants, also wrote to the plaintiff's solicitor, by letter dated 31 August 2016 in these terms: "I have been provided with a copy of the letter from Gilchrist Connell dated 17 August 2016. My clients, the 107th and 108th defendants, share the concerns expressed in that letter as to your client's ability to meet an adverse costs order. In the circumstances, my clients join in the requests for information as to the financial standing of your client as outlined in the letter from Gilchrist Connell or such other information capable of satisfying my clients as to your client's financial capacity to meet an adverse costs order. In the absence of a satisfactory response I will assume, given the matters referred to in the Gilchrist Connell letter, that your client cannot meet such a costs order. In those circumstances, my clients reserve all their rights in respect to seeking security for their costs."
4. By letter dated the same day, the solicitor for the plaintiff responded as follows: "1. Current status of the Project I refer to the second paragraph of the letter from Gilchrist Connell dated 17 August 2016, which states the following: 'In those Affidavits, your client informed our clients, for the first time since proceedings commenced in 2012, that the development of the Willoughby Market Gardens site is nearing completion.' This is in fact incorrect. You have known this for some time. We refer you to the Affidavit of Simon Napoli sworn on 25 June 2016 and served upon you on 27 June 2016, and in particular paragraph 54. That evidence is consistent with the Affidavit evidence of Mr Kallipolitis sworn on 14 July 2016 and myself. In any event, that the Project is nearing completion is irrelevant. The plaintiff still holds significant assets and the completion of the project must be isolated from the financial capacity of the plaintiff to meet an adverse costs order. I am instructed that not all homes within the Willoughby Market Gardens site have been settled, and the plaintiff holds a solid asset base. Indeed, the plaintiff holds title over 6 homes. I am instructed that the combined value of these homes is in excess of $14,000,000. Furthermore, I am instructed that it is not known when those 6 homes will be settled, and it is not imminent. Before the settlement of each of the 6 homes can occur, the following is required: 1. Willoughby Council is required to release the linen plans, and approve the subdivision of the land. Council has provided no time frame for this to occur, and this could be days or weeks; then 2. Documents will then need to be lodged with Land and Property Information Office, but will be subject to any relevant requisitions before being released for registration. The time frame for this is not known, and could be days or weeks; then 3. The relevant purchaser of each of the homes will then be notified. Settlement will thereafter likely take place in a period of 14 or 21 days. Due to the matter being in the hands of the Council and other departments, the time period to which settlement of all the homes is likely to occur is outside of the plaintiff's control. 2. Delay in raising the issue The proceedings first commenced on 18 May 2012. By Further Amended Statement of Claim filed on 20 February 2015 … … The documents which have been discovered by both your clients indicate that both were fully aware, from a time prior to the proceedings, that following the purchase of the Properties by the plaintiff, the Properties were to be developed and subsequently sold. The sale and/or purchase of properties within the Willoughby Market Gardens Properties indeed would be information readily available in the market place. Your clients were also both aware of the structure of the plaintiff, with HWL drafting most of the documents establishing the plaintiff and those documents having been submitted to the RTA and the Minister as part of the tender. However, despite this lengthy period of time, despite the proceedings having been on foot for almost 4 years, despite the volume of documents that your clients have in their possession, despite the volume of documents that have been made disclosed to you by the plaintiff and despite the knowledge of each of you and your clients, and the costs to our client of all of this, you have failed to raise as an issue relating to the sale of the Properties and a concern about the plaintiff's ability to meet any adverse costs order. It is simply too late to raise this issue now. The Financial Records I refer to the fourth paragraph of the letter from Gilchrist Connell in relation to the proceedings … involving my client and Midson Construction (NSW) Pty Ltd. I note that comments suggest that awareness of this matter only came to light through that firms' own searches. I refer you to the Affidavit of Simon Napoli sworn on 25 June 2016 and served on 27 June 2016, and in particular paragraph 53. This matter has already been disclosed to you. You have requested copies of documents relating to the financial position of the plaintiff. I refer to the Plaintiff's Lists of Documents served upon each of your clients. Lists of documents were served some months ago and listed in excess of 700 number of documents. Those Lists of Documents relevantly discovered Financial Statements … You have therefore been provided with financial records previously, and would have been in a position to assess the concerns that your letters raise in relation to the matter. In addition, a forensic accounting report will shortly be served which will include financial documents. The plaintiff maintains the position that your concerns about its ability to meet any adverse costs order is unfounded."
5. Thereafter, all defendants would appear to have taken steps to consider and monitor the plaintiff's financial standing. Property searches revealed that the plaintiff owned nine properties at around the date of the last correspondence. Only three properties were still retained by the plaintiff between December 2016 and about 20 October 2017.
6. On 29 June 2018, the plaintiff served its reply evidence in these proceedings. That evidence included the affidavit of Simon Napoli. Mr Napoli said that approximately $1million had been set aside for ongoing costs, including litigation costs, that those funds had been exhausted and that there was no other income available to the plaintiff. Further, Mr Napoli said that the plaintiff was unable to repay loans made to it by the PPK Willoughby Funding Trust.
7. At all times prior to receiving the plaintiff's evidence in June 2018, the defendants' solicitors had apparently been satisfied, as a result of their investigations and inquiries, that the plaintiff had sufficient property to secure any costs that the plaintiff may in due course be required to pay. At no time prior to June 2018 did the plaintiff inform any of the defendants that its financial position, as outlined in its August 2016 letter, had materially changed. At no time prior to June 2018 did the plaintiff inform the defendants that the last property owned by it had been sold, that the plaintiff was no longer able to repay its debts, or that its litigation fund was depleted.
8. On 1 August 2018, the Crown Solicitor's Office wrote to Mr Kallipolitis as appears below: "I refer to the above matter and advise that my clients, the 107th and 108th defendants, have concerns as to whether your client would now be able to meet an adverse costs order at the conclusion of these proceedings (in addition to the interlocutory costs orders already made in my clients' favour). In this regard I note: 1. As of recently, your client no longer owns any real property; and 2. At paragraphs 26 to 30 of his affidavit sworn 21 June 2018, Mr Simon Napoli, a director of Edge Property Group Pty Ltd, the Development Manager of the Plaintiff for the Willoughby Project gives evidence that: (a) Approximately $1,000,000 had been set aside for further ongoing costs on the project, principally litigation, half of which was initially earmarked for this dispute. All that money has been expended: [26]; (b) PPK has been unable to pay and there remains unpaid the loan from FUT to PPK. There are no more homes to settle and therefore no further income available to PPK: [29]. Accordingly, on the basis of the above, my clients have reason to believe that your client will be unable to pay the costs of the litigation if unsuccessful and are considering making an application for security for costs pursuant to Uniform Civil Procedure Rules 2005 (NSW) Rule 42.21. I advise that, having regard to the volume of material in evidence, the number of witnesses to be called and the likely length of the hearing of the proceedings (between 15 to 20 days) my clients' costs from today through to the conclusion of the hearing are likely to exceed $250,000, including expert and witnesses expenses and Junior and Senior Counsel fees. In the interests of avoiding unnecessary expenditure, and consistently with the Plaintiff's obligations under section 56 of the Civil Procedure Act 2005, I invite your client to either provide that amount as security for costs or provide evidence as to how it will meet any adverse costs order in favour of my clients. Please provide your response by 3 August 2018."
9. That letter prompted the following response on 13 August 2018: "With respect, your assertions fail to persuade my client that your clients are entitled to Security for Costs. Your clients sent correspondence in relation to security for costs in August of 2016, almost 2 years ago. My client responded to your letters on 31 August 2016. None of the facts raised in your letters have changed since that time other than sale of the properties, an outcome which would not have taken you by surprise. Your clients did not proceed to make any application for security for costs in 2016 after receipt of the letter dated 31 August 2016. It has been open to your clients to undertake their own investigations to ascertain when the last of the properties sold. In fact the Crown Defendants have in their accounting evidence set out that the exchange of all properties had occurred by the end of 2016. It is apparent the properties settled some time ago. The matter now also has a final hearing date, for which our client is starting to prepare. You did not mention a possible security for costs application to the Court at the time it was set down for hearing, but you let it be set down nevertheless. Applicants for security for costs have an obligation to bring their applications early. Any application brought now would fail for that reason alone. Further, it would also fail because my client's financial position is as a result of your clients' conduct as pleaded. As to financials my client has served financial accounting reports the latest being in June 2018. In the event any of the defendants make an application this letter will be relied upon as to the question of costs, including on an indemnity basis."
10. The hearing of the proceedings is now scheduled to commence on 3 June 2019 with an estimate of three weeks.

Consideration

1. The only substantial issue in these applications is the question of the significance or otherwise of defendants' delay in bringing them. The authorities on delay in general in this area of discourse all speak with one voice.
2. In Covecorp Constructions Pty Ltd v Indigo Products Pty Ltd [2007] QSC 262, Martin J summarised some of the relevant considerations concerning the issue of delay in applications for security for costs as follows: "[27] The principles to be applied in this respect seem to be: (1) An application for security must be made promptly: Foss Export Agency Pty Ltd v Trotman (1949) 67 WN (NSW) 1; Buckley v Bennell (1974) 1 ACLR 301 at 308; Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1985) 1 NSWLR 114 at 123. (2) It would be unfair to allow a defendant security if that defendant has stood by and allowed the plaintiff to work on its case and incur significant expense: Smail v Burton; Re Insurance Associates Pty Ltd (in liq) (1975) 1 ACLR 74 at 75; King v Commercial Bank of Australia Ltd [1921] VLR 48 at 54; Stack v Brisbane City Council (1996) 71 FCR 523 at 531. (3) Although delay is a significant factor, there is no rule requiring refusal of an application on that basis alone. It is a factor to be taken into account with other discretionary criteria. Commonwealth of Australia and Another v Cable Water Skiing (Australia) Ltd (1994) 14 ACSR 760 at 762; Rhema Ventures Pty Ltd v Stenders [1993] 2 Qd R 326 at 332-3 per Lee J. For example, security for future costs was awarded to the defendant in Commonwealth v Cable where there had been a delay of 4 years after the proceedings had commenced. (4) The issue of delay will weigh more significantly in some cases than others. Crypta Fuels Pty Ltd v Svelte Corporation Pty Ltd (1995) 19 ACSR 68 at 71. In Crypta Fuels Lehane J noted that the cases in which orders for security were made despite delay have usually involved one or both of two factors, those being: a) '...that the hearing or resumed hearing was not immediately imminent...'; and b) '...that there has been some forewarning: usually correspondence concerning the financial standing of those who might benefit from the success of an applicant or plaintiff, and often detailed correspondence foreshadowing an application for security for costs.' (at 71). To similar effect was the statement by French J in Bryan E Fencott P/Lv Eretta P/L (1987) 16 FCR 497 at 514: 'The further a plaintiff has proceeded in an action and the greater the costs it has been allowed to incur without steps being taken to apply for an order for costs, the more difficult it will be to persuade the court that such an order is not, in the circumstances, unfair or oppressive.' In Buckley v Bennell (1974) 1 ACLR 301 at 309 Moffitt P put the matter as follows: 'The right to seek security for costs and to stay proceedings, with the possible result that a claim for damages is frustrated, is a powerful weapon. Therefore, the litigant who seeks to use it against his opponent is at risk of not having it available, unless the application is made and persevered with in circumstances involving the least oppression of his opponent. The primary reason why the application should be brought promptly and pressed to determination promptly is that the company, which by assumption has financial problems, is entitled to know its position in relation to security at the outset, and before it embarks to any real extent on its litigation, and certainly before it is allowed to or permits substantial sums of money towards litigating its claim'."
3. More recently in Australian Worldwide Pty Ltd v AW Exports Pty Ltd [2018] NSWSC 1632 at [58], Parker J said this: "[58] … there are many statements in the authorities to the effect that delay in bringing an application is of little if any significance unless the question of the proceedings being stultified is raised: Rickard Constructions Pty Ltd v Allianz Australia Insurance Ltd [2002] NSWSC 1162 at [17]; Rhema Ventures Pty Ltd v Stenders [1993] 2 Qd R 326 at 332-333. This is because usually the only prejudice created by delay is the expenditure of further costs on the litigation. If it is not suggested that the making of an order for security will stultify the litigation, then the delay has caused no prejudice."
4. Finally, it is sufficient to note what was said by Newnes JA in Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 at [20]: "[20] It is, however, incumbent upon a defendant who wishes to obtain security for its costs to apply promptly for that relief once it is, or ought reasonably be, aware that the plaintiff would be unable to meet an order for costs. Security for costs is not a card that a defendant can keep up its sleeve and play at its convenience. Delay is an important consideration in the determination of an application for security for costs because it is capable of causing prejudice or unfairness to the plaintiff. A plaintiff is entitled to know at the earliest opportunity, before it has committed substantial resources to pursuing the litigation, whether it will be required to provide security. The later an application is made the greater the likelihood that it will cause substantial disruption or distraction in the conduct of the plaintiff's case, and if the plaintiff is unable to provide security, the greater the costs that will have been wasted…"
5. It is presently unnecessary to consider other cases to which the parties referred in their written submissions and oral argument.
6. The present applications are slightly unusual in my experience. First, as already indicated, there is no issue that the plaintiff has no income or assets of its own or within its control or that it is currently only supported by sympathetically interested third parties on an ad hoc basis as the circumstances require. It is not in issue that the plaintiff would be presently unable to satisfy an adverse costs order from its own resources or without external assistance. This was also the agreed position. Moreover, it was plainly established on the defendants' evidence. The plaintiff did not proffer any evidence to the contrary.
7. Secondly, the plaintiff does not assert that its nominal impecuniosity was caused by the defendants or that it is in any way related to the acts or omissions or other breaches upon which the plaintiff sues. It is accepted that the plaintiff's claims for damages assert that the plaintiff's returns from developing the land were reduced by these matters. There is, however, no contention that the plaintiff's solvency or financial viability were fundamentally destroyed or eradicated or even diminished as a consequence.
8. Thirdly, and in a related sense, the plaintiff does not contend that it is prejudiced in any way by the failure of the defendants to prosecute the present applications sooner. The plaintiff does not say that, but for these applications, it would have taken a different course, or would have considered some alternative forensic strategy. It does not say that it altered its position in some fashion in reliance upon the understanding or expectation, fostered or encouraged by the defendants' inaction or some form of actionable representations, that security would not be pursued, or that it has suffered loss or some other identifiable detriment as a result.
9. As I understand the authorities, the fact that a defendant may have delayed the bringing of an application for security for costs will be less relevant, and possibly even irrelevant, unless it can be seen to have generated or produced some consequence of significance. That has not occurred in this case. These applications were flagged in 2016 at a time when the plaintiff was actively trading and presumably possessed of assets and an income stream that it could have pointed to in response to any suggestions that it was worthless. Its current financial position is the result of no more or less than consistent adherence to its favoured business model. The foreshadowed applications neither caused the plaintiff to stop what it was doing nor to alter its course in any way. At best, the plaintiff is only able to say that the defendants' applications would have been less likely to succeed if brought earlier. That is not the same as saying now that they should be defeated by inconsequential delay since then.
10. The parties dealt at some length with the question of whether or not, and if so when, the defendants were, or should have been, aware of the fact that the plaintiff was divesting itself of assets or more significantly of the time that it had done so completely. In my opinion, this is a false issue. That is for the reason that it is tied to the question of delay and the assessment of whether the defendants should have sought security sooner. However, in accordance with my assessment, this issue only assumes importance if the delay caused prejudice or disruption to the plaintiff in the ways I have earlier discussed. As it is my opinion that it did not do so, it is unnecessary to determine the time by which the defendants knew or ought to have discovered what the plaintiff was doing with its properties or the proceeds of their sale.
11. The 2nd to 106th defendants invited the plaintiff, by letter dated 16 November 2018, to propose a person of satisfactory financial standing to provide the necessary assurances by way of bank guarantee or payment into court. This suggestion was not taken up by the plaintiff.
12. A significant factor informing the exercise of my discretion is the existence of persons who are behind the plaintiff and who stand to benefit from the result in these proceedings, in the sense of sharing in the proceeds of the plaintiff's victory, without being prepared to expose themselves to the risk of a corresponding burden in the form of an adverse costs order. This conduct is also relevant to the assessment of whether it is fair that the defendants should bear all of the risks as to costs of the proceedings. A proper characterisation and understanding of that imbalance is important to the exercise of my discretion in this case. It cannot be a matter of no consequence that the plaintiff in effect wishes to consume what is sweet but discard what is sour.
13. The plaintiff's submissions emphasised that the principle that underpinned the rule that security for costs applications should be brought promptly and without delay was one of fairness. In my view, it would not be unfair to the plaintiff if it were ordered to provide security, even at what the plaintiff would wish to characterise as this late stage. By way of contrast, it would be decidedly unfair to the defendants to be required to continue to expend resources on the defence of the proceedings without any enforceable prospect, far less anything even approaching a reasonable expectation, that their costs would be paid if they were ultimately to succeed. The current balance of risk is all one way.
14. The plaintiff is a corporation. The jurisdiction to exercise the relevant discretion to award security for costs in the present case is to be found in s 1335(1) of the Corporations Act 2001, UCPR 42.21(1)(d) and in the Court's inherent jurisdiction.
15. Under these provisions, the relevant pre-condition or threshold to the exercise of the discretion is the establishment of a reason to believe that a plaintiff will be unable to pay the costs of the defendant if the defendant is successful in its defence. The jurisdictional fact on which an application for security depends is a reasonable belief in the inability of the plaintiff to meet an order for costs (if made) in favour of the defendant. If a defendant is able to establish the necessary jurisdictional fact and thereby satisfy the pre-condition, then the Court must turn to the exercise of the discretion.
16. The test is not whether the plaintiff is solvent or insolvent. Rather, the question is whether there is reason to believe the plaintiff will be unable to pay the costs of the defendants. That belief must be rational, but it need only be a belief. The test has been described as undemanding. In the present case, it is clear that there is a reason to believe the plaintiff will be unable to pay the defendants' costs if so ordered.
17. In my opinion, the plaintiff should be required to provide security for the defendants' costs. The only remaining issue is what the form and quantum of that security should be.

Quantum and form of security

1. All parties tendered evidence on the question of the amount of security that the plaintiff should provide if ordered to do so. The plaintiff read the affidavit of Ms Ward referred to earlier. She was not cross-examined. Her extensive credentials were not challenged.
2. Ms Ward came to the following conclusions at [41] of her affidavit: "41. For the reasons outlined above, I have therefore concluded that a reasonable and realistic allowance for security for costs, if any is made, should be no more than: (a) $708,982.02 excluding GST for the 107th-108th defendants; and (b) $420,864.00 excluding GST for the 2nd-106th defendants."
3. Ms Morgan assessed the costs of the Crown defendants at [20] of her affidavit as follows: "20. The costs of the 107th and 108th defendants in defending the plaintiff's claim to date are $755,527.60, comprised as follows: (a) solicitor fees $400,126.03 (b) disbursements $355, 401.57"
4. Ms Morgan calculated the same defendants' future costs in the sum of $300,161. The total of the costs for these defendants was therefore anticipated to be an amount of $1,055,688.60.
5. The total of the 2nd to 106th defendants' costs was estimated by Ms Schumacher. At [35] of her first affidavit, she calculated the past recoverable costs of these defendants to be an amount of $200,000 and future recoverable professional fees of $35,200 and counsels' fees of $234,000. Ms Schumacher therefore expressed the opinion that an appropriate sum by way of security for costs of these defendants would be a total of $469,200.
6. It goes without saying that these calculations and assessments are no more than individual attempts to predict what would be reasonable amounts likely to be recovered on a party and party basis following an assessment by a qualified costs assessor. The defendants' past cost are not subject to uncertainty although the extent of the recoverability of those costs may be. Future costs are subject to a series of vicissitudes that clearly cannot be predicted with confidence. For example, and most obviously, the hearing of the proceedings may run for longer or shorter than predicted.
7. Nor should the assessments of recoverable costs be permitted to rise to the level of empirical or scientific analysis. Without in any way wishing to derogate from the skill and expertise of those who have offered their opinions, there is necessarily great variability in the predictions that cannot be avoided by the application of some uniformly accurate formula. Differences will always exist.
8. Although the plaintiff contended that security, if ordered, should not include past incurred costs, I see no convincing rationale or principled reason for any such limitation. The defendants are at risk for the whole of their costs whenever they were incurred. I have already indicated that the plaintiff has not suffered any adverse consequences as the result of the timing of these applications.
9. Doing the best I can, I consider that the plaintiff should provide security for the costs of the 2nd to 106th defendants in an amount of $400,000 and for the costs of the 107th and 108th defendants in an amount of $850,000.
10. I have not heard the parties concerning the form which the security in these sums should take.
11. Accordingly, I make the following orders: 1. Order the plaintiff within 28 days to provide security for the costs of the defendants in a form suitable to the defendants and to the Court as follows: 1. in an amount of $400,000 as security for the costs of the 2nd to 106th defendants; 2. in an amount of $850,000 as security for the costs of the 107th and 108th defendants. 1. Stay the proceedings pending compliance by the plaintiff with order (1). 2. Direct the parties within 7 days to bring in short minutes of order giving effect to my conclusions. 3. Grant liberty to all parties to apply on 24 hours' notice. 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: 11 December 2018