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ARTICLE · 20 MAY 2021

Security for costs in NSW: Balancing justice between the parties

The court's power to make an order for security for costs is discretionary and considers all relevant circumstances.

AustraliaLitigation, Mediation & Arbitration

To minimise the risk of substantial collateral financial loss, the court, on evidence of a plaintiff's impecuniosity, may make an order that the plaintiff pay money into court as security. In the event that the plaintiff is unsuccessful in its case and is ultimately ordered to pay the defendant's costs, the defendant may recover its costs from those monies ordered as security – this court process is referred to as security for costs.

While potential litigants should not be discouraged from seeking justice through the legal system, what happens when a plaintiff is unsuccessful in their claim but cannot pay the costs of a defendant that has been put to the substantial expense of successfully defending proceedings?

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