King & Wood Mallesons

Asia-Pacific 100 position: 3

Case update: a timely reminder — delay in bringing security for costs applications may be fatal

By Matthew Carr

In the recent decision of Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577, the Supreme Court of Victoria reaffirmed the position that any delay in bringing a security for costs application is a factor that bears considerable weight in the exercise of the court’s discretion to grant such an order. This is particularly so where the applicant knew, for some time, of the other party’s potential inability to satisfy an adverse costs order in the main proceedings and simply kept the application ‘up their sleeve to play at their convenience’.

In this case, the applicant was found to have known of the other party’s potential inability for a period of 17 months before bringing the application. The application was brought one month out from the commencement of arbitral proceedings…

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