Background
True EV Distribution Pty Ltd and related applicants brought proceedings against Shenzhen Xiaopeng Motors Supply Chain Management Co Ltd and related respondents, described by the Court as XPeng. The proceeding was listed for a three-week hearing commencing on 6 October 2026.
In April 2026, the Court ordered True EV to provide security for XPeng’s costs in two instalments of $628,430, due on 31 May and 31 July. True EV paid the first instalment 26 days late, after XPeng had sought dismissal. It did not pay the second instalment by its due date, and XPeng again applied to dismiss the proceeding.
The Court’s Holding
Justice Jackman declined to dismiss the proceeding immediately. A finance broker’s affidavit gave a sufficiently concrete explanation for the delay and described both an expected release of funding and alternative funding options. The Court therefore gave True EV a further, final opportunity to pay the second $628,430 instalment.
The order was self-executing: unless True EV’s solicitor filed and served an affidavit confirming payment into court by 10 am on 19 August 2026, the proceeding would be dismissed with costs, including reserved costs. True EV was also ordered to pay XPeng’s costs of the dismissal application hearing.
Key Takeaways
- Late compliance with a security-for-costs order can expose a party to dismissal and costs.
- Specific evidence of imminent funding and a credible explanation for delay may justify a short final extension.
- The Court used a self-executing dismissal order to protect the respondent if security was not promptly provided.
Why It Matters
The decision shows that a party in default of a security-for-costs order may receive limited relief where it produces reliable, concrete evidence that payment is imminent. But the relief was expressly final: absent the broker’s evidence, Justice Jackman said he would have dismissed the case immediately.
The Court also stressed the prejudice to XPeng of preparing for trial without adequate security, particularly where its recoverable costs were likely soon to exceed the first instalment.