Security for costs favours IP over ANZ, barely

ANZ bank security for costs claim trimmed by court.ANZ Bank's security for costs estimate was deemed excessive.
Battling ANZ for fees: Andre Strazdins

BRI Ferrier’s Andre Strazdins: security for costs order less than ANZ wanted.

Adelaide insolvency practitioner Andre Strazdins has had the barest of wins in his ongoing battle to recover $724,000 in fees and expenses from the ANZ Bank incurred whilst voluntary administrator (VA) of Darwin nightclub operator, DNPW Pty Ltd.

Last week Justice Martin Hinton of the Supreme Court of South Australia ordered that Strazdins deposit $270,000 with the court as security for costs ahead of an anticipated 15-day trial later this year.

While it was more than the$211,264.00 Strazdins had proposed, it was a lot less than the the $369,249.54 the ANZ wanted so Strazdins, who has a litigation funder bankrolling him, can take some consolation from that as he fights to recover fees and expenses the BRI Ferrier Adelaide principal incurred whilst trading one of the DNPW businesses. You can read the background at: BRI’s Strazdins In Fee Stoush With ANZ

The security for costs sum has to be paid into the court by April 24, 2017 and failure to do so would see the proceedings against the bank stayed. Meanwhile, the ANZ has also initiated a claim seeking indemnification from eight third parties for any sum Strazdins might recover from the bank which it had previously recovered from DNPW that had been secured by the eight third parties.

Unsurprisingly, the third parties have filed a cross-claim against Strazdins but the judge said none of the work ANZ’s lawyers have billed for that relates to the third party claim or the cross-claim can be factored into his calculations for security for costs.

“I mention these matters to discount them;” he said. “The order Judge Bochner made for security for costs did not include security for costs likely to be incurred by the defendant in prosecuting its third party claim nor for work done by the defendant in addressing issues arising from the counterclaims,” Justice Hinton said.

“Applying the broad rush approach to which I have referred above, and reminding myself that my task is not to give the defendant “complete and certain” indemnification for costs, and having regard to the material provided to me in the affidavits of Ms Calabrese and Mr Jarvis, I consider it appropriate that the plaintiff pay into Court as security for the defendant’s costs the sum of $270,000.00.”

A win for Strazdins barely, but whether a trial even proceeds is uncertain. An application has been made to bring the parties to mediation and another application has been filed which seeks to have the proceedings moved to the Northern Territory. At least the lawyers are winning.

About the Author

Peter Gosnell
Insolvency News Online illuminates the practice of insolvency Australia-wide, highlighting the triumphs and travails of the nation’s registered practitioners and the accounting and legal professionals who work with them. INO is produced by Peter Gosnell, former business editor and senior business reporter at The Daily Telegraph newspaper. During a decade-long career, your correspondent reported on such notable corporate collapses as HIH, One.Tel, Westpoint and Fincorp as well as some of the nation's highest profile bankruptcies and the investigations and prosecutions arising from Australia's most notorious instances of white-collar crime.

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