Security for costs application preparation
Security for costs applications stop shell plaintiffs running cases with nothing at risk. This checklist walks through the preparation steps.
This is a 12-step preparation checklist for a security for costs application in NSW. It covers threshold grounds, discretion, quantum, evidence and orders sought.
The checklist
Confirm a threshold ground exists
Corporate plaintiff unable to pay costs, overseas plaintiff, nominal plaintiff or change of address.
Gather evidence of inability to pay
ASIC searches, financial statements, court judgments and winding-up history.
Assess discretionary factors
Strength of claim, delay in bringing the application, impecuniosity caused by the defendant, public interest.
Calculate the quantum
Prepare a costs schedule of estimated future costs on the party-party basis, stage by stage.
Identify the form of security
Cash into court, bank guarantee, payment into the trust account. Propose an acceptable form.
Draft the notice of motion
Draft a notice of motion seeking security, stay pending provision and costs.
Draft supporting affidavit
Affidavit exhibiting the searches, financial material and costs schedule.
Draft written submissions
Submissions on threshold, discretion, quantum and form. Address likely objections.
Serve and file
Serve the motion, affidavit and submissions within the court timetable.
Prepare for cross-examination
Prepare for cross of the deponent — particularly on impecuniosity caused by the defendant.
Consider staged security
Staged security is common — propose a realistic staging tied to case milestones.
Manage default and stay
If security is ordered and not provided, apply for stay and then dismissal.
When this checklist applies
Use this checklist when considering or preparing a security for costs application. Raise the issue early — delay is a discretionary factor against the applicant.
Common pitfalls
- Leaving the application until trial
- Understating the quantum
- Ignoring impecuniosity caused by the defendant
- Accepting unenforceable forms of security
- Not following up on default
Run this checklist on a real matter
Quillio drafts security for costs motions, affidavits and submissions in current NSW format. See /practice-areas/litigation-lawyers.
This checklist is a general guide. Adapt for Federal Court and class action security applications.
Use this checklist on your matter.
Quillio can run this checklist on a specific NSW conveyancing matter — confirm each item, calculate adjustments, and generate the supporting documents. The free trial requires no credit card.
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