Background
Brett Antymniuk and Hot Air Balloon Ride Pty Ltd as trustee for the Stockton Beach Camp Superannuation Fund sued to recover principal advanced under two 2024 loan agreements. They also sought declarations that each held an equitable charge over property owned by Tracey Anne Davies at Hazelbrook, relying on a clause in the agreements that purported to provide interim security over that property.
Davies denied signing the 2024 agreements and alleged that her purported signatures were fraudulent. Further issues arose over whether any charges had ceased to operate after the borrower acquired another property or after the parties entered replacement loan agreements in 2025 that did not include security from Davies. Davies sought security for costs, initially claiming $131,960 and later submitting that $90,000 to $100,000 was appropriate.
The Court’s Holding
Richmond J ordered Antymniuk, the first plaintiff, to provide $30,000 as security for Davies’s costs. Antymniuk ordinarily resided outside Australia and had no assets in Australia, and there was no evidence that a costs judgment would be as readily enforceable against him in Sweden as it would be in New South Wales. Although there was no evidence about his financial position, there was also no suggestion that he was impecunious or that requiring security from him would stifle the proceeding.
The Court did not order the corporate trustee to provide security because doing so would stifle its claim, a factor weighing strongly against such an order. The plaintiffs’ case against Davies was arguable and brought bona fide, though attended by difficulties. The Court rejected Davies’s requested quantum as disproportionate and her solicitor’s estimate as unreliable, instead adopting a broad-brush figure of $30,000. The proceeding against Davies was stayed until security was provided, with leave for her to seek dismissal if it was not provided within 28 days; costs of the motion were made costs in the cause.
Key Takeaways
- A foreign plaintiff’s lack of Australian assets and the absence of evidence that an Australian costs judgment can be enforced abroad with comparable ease may support security for costs.
- The risk that security will stifle a claim can justify declining to order it against an impecunious corporate plaintiff, even when the threshold for considering security is satisfied.
- Security is not intended to guarantee full recovery of a defendant’s costs; the amount must be just, reasonable, and proportionate to the dispute.
Why It Matters
The decision illustrates the plaintiff-specific nature of security-for-costs orders where multiple plaintiffs have different financial circumstances. The Court distinguished between an overseas individual, against whom enforcement could be less convenient, and an impecunious corporate trustee whose claim would be stifled by an order.
It also demonstrates that unsupported or unrealistic cost estimates will not determine the amount of security. Courts may substantially reduce the sum sought after considering the actual complexity and importance of the issues.