Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:

1. On 11 March 2025, Kunc J gave reasons for setting aside a decision of Acting Registrar Onisforou in relation to the provision of security by the plaintiff for the defendant's costs of this litigation: One Lake Macquarie Pty Ltd (In Liquidation) v Athena Rose Capital Pty Ltd [2025] NSWSC 177 (the March judgment). The Acting Registrar had refused to make an order for security for costs. Kunc J disagreed with that conclusion. However, because the question of the amount and timing of security had not been the subject of argument before him, he made orders that the parties 'endeavour in good faith to agree...on orders to give effect to the Court's reasons including as to costs, and as to the quantum of security to be provided and in what tranches'. His Honour further ordered that 'if agreement is reached...consent orders to be made in chambers' were to be emailed to his Honour's associate.

2. The parties through their counsel duly engaged in good faith negotiations to agree the form of consent orders. Consent orders were forwarded to the associate to Kunc J who made orders in chambers on 19 March 2025 (the March consent orders). Relevantly, they provided for security to be provided by payment into Court.

3. The plaintiff has now entered into a litigation funding agreement with a litigation funder. Although there was a debate about certain clauses of the funding agreement, I accept (for reasons I will explain in due course) that the funder is only willing to fund the provision of security for costs by way of a bank guarantee. The defendant does not consent to the provision of security in this form.

4. The plaintiff therefore seeks an order pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16 varying the 19 March 2025 consent orders to permit the provision of security by way of delivery of an unconditional bank guarantee.

Background

5. I will adopt the same naming convention used by Kunc J and refer to the plaintiff as OLM and to the defendant as ARC.

6. The background to the proceedings was set out by Kunc J at [11] to [13] of the March judgment. It is not necessary to repeat it.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1981a5ef510d1483dc834a22)

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