Green & Associates Pty Ltd t/as Green & Associates Solicitors v Shea

These reasons concern the defendants’ notice of motion filed on 14 December 2025 seeking orders pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or s 1335 of the Corporations Act 2001 (Cth) that the plaintiff provide security for the defendants’ costs of the proceedings in the total sum of $300,000, payable in the three tranches, and for orders staying the proceedings pending payment of the first tranche and in the event that subsequent tranches are not paid.

At the conclusion of the hearing of the motion in the Applications List on 13 February 2026, I made orders requiring the plaintiff to provide security in the sum of $240,000, payable in three tranches, the first of which is due within 28 days after the date of the orders, and staying the proceedings pending that payment. The second and third tranches are due within 14 days after the defendants file a defence and 28 days prior to the first date of the final hearing, respectively. The proceedings are stayed in the event that either of those tranches are not paid. These are my reasons for making those orders.

The plaintiff, Green & Associates Pty Limited, is an incorporated legal practice trading as Green & Associates Solicitors. Mr Dominic Green is the sole director, secretary and shareholder of the plaintiff and the principal solicitor of Green & Associates Solicitors.

The first defendant, Ms Laura Shea, was formerly employed by the plaintiff in the role of Executive Assistant to Mr Green.

The second defendant, Mr Jonathon Parkinson, is the spouse or partner of Ms Shea.

The plaintiff commenced the proceedings by statement of claim filed on 19 November 2025.

Mr Green is presently the solicitor on the record for the plaintiff.

The statement of claim sets out a long and detailed history of the relationship between the plaintiff and Ms Shea and the plaintiff’s multiple grievances against Ms Shea, with excursions into the plaintiff’s complaints about other employees and former employees who are not parties to these proceedings.

Considerable effort is required to distil from this narrative the alleged facts that are material to the plaintiff’s claims.

The plaintiff alleges that Ms Shea committed numerous breaches of her employment agreement, including by:

The plaintiff claims damages for those alleged breaches of contract in the total sum of $267,260.34, of which $29,997.65 relates to the alleged financial misappropriation. Schedule C to the statement of claim sets out a six-page itemised list of alleged charges to the plaintiff’s credit card for Ms Shea’s personal expenses, alleged “misleading credit card charges for others”, alleged “misuse of company accounts”, alleged retention of “benefits owing to company”, alleged “unauthorised payments incurred through negligence”, and alleged “deceptive reimbursements”. The statement of claim does not plead the material facts on which the plaintiff relies in relation to each of the impugned transactions in Schedule C, but makes general assertions that an “audit” revealed patterns of behaviour by Ms Shea in use of the plaintiff’s credit cards and the plaintiff’s accounts with third parties.

The plaintiff also claims aggravated and exemplary damages are claimed in addition to that sum. Under Australian law, exemplary damages are not recoverable for breach of contract. [1]

The prayers for relief in the statement of claim include a claim for damages “by way of compensation in tort”, but the statement of claim does not plead the elements of any tort. Neither the bare assertion in the statement of claim that Ms Shea “was negligent” in doing or failing to do certain things, nor the rolled-up assertions that Ms Shea’s alleged conduct towards other employees of the plaintiff constitutes “tortious inducement to breach of contract”, satisfy the requirements for pleading those causes of action.

The plaintiff also claims damages against Ms Shea in the sum of $20,941 for alleged breaches of the terms of an agreement pursuant to which the plaintiff says that it represented Ms Shea in relation to two proceedings brought or threatened against her by third parties. The breaches are said to involve certain alleged behaviour on the part of Ms Shea which she allegedly “confessed” to Mr Green. The plaintiff has pleaded that claim in a manner that discloses the substance of the alleged “confession”, which appears on the face of the information in the statement of claim to be a confidential communication made between client and solicitor in the course of the solicitor providing legal services to the client in relation to actual or anticipated legal proceedings.

The statement of claim pleads no cause of action against the second defendant, Mr Parkinson.

Prayer 13 of the claims for relief in the statement of claim seeks an order granting leave to the plaintiff to issue a writ of execution for the levy property in respect of the jointly owned property of Ms Shea and Mr Parkinson. As the plaintiff acknowledged at the hearing of the security for costs motion, it will not move for that relief unless and until judgment is entered against Ms Shea in its favour.

The statement of claim contains a narrative section foreshadowing a potential application for a freezing order in relation to that jointly owned property on the basis that the plaintiff is concerned that Ms Shea “will seek to frustrate the process of the Court and/or abscond its jurisdiction” and that there is a risk that the jointly owned property “will be divested and/or dissipated if the relationship between the First Defendant and the Second Defendant breaks down”.

The defendants have entered an appearance, but have not yet filed defences.

In the short time since the proceedings were commenced, the plaintiff and the defendants have each filed notices of motion making made numerous claims for interlocutory relief.

By notice of motion filed on 27 November 2025, the defendants sought:

The defendant’s claim for an interlocutory injunction restraining the disclosure of confidential information was resolved by an undertaking given by the plaintiff at a hearing before the Equity Duty Judge on 27 November 2025.

Mr Green appeared for the plaintiff at that hearing armed with a notice of motion seeking freezing orders against the defendants, examination orders, and orders for the production of documents. The plaintiff filed that notice of motion later that same day.

As I have already mentioned, the defendants’ notice of motion seeking security for costs was filed on 14 December 2025. As referred to later in more detail below, the defendants issued to a notice to produce to the plaintiff that same day requiring production to the Court of various financial records.

The plaintiff produced no documents in response to the defendants’ notice to produce when it first returnable before the Court on 4 February 2026. The plaintiff filed a notice of motion on 5 February 2026 seeking:

The proceedings were listed for directions in the Applications List on 6 February 2026. There was no appearance for the plaintiff. On the application of the defendants, the Court made directions listing the security for costs motion for hearing on 13 February 2026, including directions for the filing and service of evidence and submissions. Counsel for the defendants informed the Court that they wished to have the security for costs motion heard in the first instance, and that they would be content to proceed to hearing of that motion before making any further call on the notice to produce.

The plaintiff’s solicitor was informed of the directions made on 6 February 2026 later that day. The plaintiff made no application to vary or set aside those directions, or to list any other motion in the proceedings for hearing. The plaintiff did not comply with the directions for the filing and service of evidence and submissions in relation to the security for costs motion.

Mr Green appeared on behalf of the plaintiff in the Applications List on 13 February 2026. Mr O’Neill of counsel appeared for the defendants.

The plaintiff applied to adjourn the hearing of the security for costs motion on several grounds, including that the plaintiff required further time to prepare evidence and that the Court should first hear the plaintiff’s application to restrain Ms MacDonald and Ms Nolan from acting for the defendants. The adjournment application was refused for reasons given orally at the time.

The defendants read two affidavits of Ms MacDonald, one sworn on 14 December 2025 and the other sworn on 5 February 2026, in support of the application for security for costs.

The plaintiff read an affidavit of Arina San affirmed on 27 November 2025, an affidavit of Riva Thapa affirmed on 8 December 2025, an affidavit of Suzie Schwass affirmed on 6 February 2026, an affidavit of Daniel Price affirmed on 6 February 2026, and an affidavit of Mr Green affirmed on 6 February 2026. Mr Green’s affidavit exhibited almost 400 pages of documents.

The plaintiff sought leave to read an affidavit of Mr Green affirmed on 12 February 2026 and two further affidavits of Mr Green affirmed on 13 February 2026 on the hearing of the security for costs application. Those affidavits together with their exhibits comprised approximately 550 pages and had been filed with the Court at 5:16pm on 12 February 2026 and at 10:16am and 11:00am on the day of the hearing of the motion. When asked to identify the relevance of the evidence to the issues to be determined on the security for costs application, Mr Green, on behalf of the plaintiff, submitted that it was relevant:

Having reviewed the further affidavits, I did not consider that they were capable of demonstrating that the first defendant had no prospects of successfully defending the proceedings. [2] To the extent that the affidavits might arguably have been relevant to the question of prospects of success, I accepted the defendants’ submission that they would be prejudiced if the plaintiff were permitted to rely on such a large volume of evidence, most of which had first been served on the defendants that morning, in circumstances where the plaintiff offered no satisfactory explanation for its failure to comply with the directions that had been made on 6 February 2026. I did not consider that the second and third matters identified by the plaintiff were relevant to the security for costs application. [3]

The plaintiff was permitted to read a small number of paragraphs of one of the affidavits that I considered were relevant to the question of the quantum of any security, and that the defendants would not be prejudiced by the late service of those parts of the affidavits. I invited Mr Green to identify any material within the lengthy exhibits to his affidavits containing financial records of the plaintiff disclosing its financial position. I would have permitted any such documents to be tendered, but Mr Green informed the Court that the exhibits did not contain any such documents. Mr Green had not included any such documents in the lengthy exhibit to his 6 February 2026 affidavit, and the plaintiff did not otherwise seek to tender any financial records.

As the applicants for security, the defendants bear the onus of establishing a rational basis to believe that the plaintiff will be unable to pay the defendants’ costs of the proceedings if ordered to do so. As the defendants submitted, that calls for a practical, commonsense approach to the examination of the plaintiff’s financial affairs. [4] The evidence adduced by the defendants falls to be weighed according to the proof that it was in their power to produce, and in the power of the plaintiff to have contradicted. [5]

Once that jurisdictional threshold is satisfied, the overarching consideration that governs the exercise of the discretion to order security for costs is whether it would work an injustice. [6] That directs attention to a number of matters including, but not limited to, the matters set out in r 42.21(1A) of the UCPR.

Although the legal burden of proof remains with the defendants as the applicants for security, the plaintiff bears an evidential onus to raise for consideration those matters that it wishes the Court to take into account in its favour in exercising the discretion. [7]

As I have already mentioned, the plaintiff is an incorporated legal practice. The defendants have adduced evidence that the plaintiff has a paid-up capital of $1.00, does not own any real property, and has an outstanding tax liability in the amount of $320,884.39.

The defendants also adduced evidence of a CreditorWatch report in respect of the plaintiff showing that there have been 27 credit enquiries made in the past five years, of which 13 have been made in the past 12 months. The defendants submitted that this is a “significant” number of recent credit enquiries. The evidence does not provide any basis for me to assess whether that number of recent enquiries is “significant” in the sense of having any rational bearing on the question whether there is reason to believe that the plaintiff will be unable to satisfy any adverse costs order in these proceedings.

The defendants rely on a letter sent by their solicitor to Mr Green on 28 November 2025 referring to the plaintiff’s apparent lack of assets and outstanding tax liability, and notifying the defendants’ concern about the plaintiff’s ability to satisfy any costs order that may be made in their favour in these proceedings. The letter requested financial records to enable the defendants to evaluate the plaintiff’s financial position, including documents concerning the outstanding tax liability and financial reports for the last two years.

Mr Green replied on 5 December 2025, stating that:

Mr Green’s letter stated that the defendants had no proper basis to apply for security for costs, and claimed that even if there were reason to believe that the plaintiff would not be able to meet an adverse costs order, that would be attributable to Ms Shea’s conduct set out in the statement of claim. Mr Green further stated that the plaintiff had an “extremely strong case”.

Mr Green’s letter did not enclose any primary documents substantiating any of his statements referred at [40] above, or any other records of the kind sought by the defendants. The letter did enclose what Mr Green referred to as a “preliminary valuation” which “places the value of the plaintiff at somewhere between $1M to $5M”. In fact, the document to which Mr Green was referring was nothing more than a short email from a person named Ali Kassem El-hage at an organisation named “Aspire” setting out a “theoretical valuation range” of between approximately $978,000 and $2,445,000 for the plaintiff, based on an assumption about the plaintiff’s annual turnover for the past two years and a “broad rule-of-thumb” that “small privately-owned Australian law firms tend to transact within a 0.5x to 3x multiple of annual turnover”. The email did not disclose the author’s qualifications or experience. As I have explained above, the plaintiff did not adduce any evidence of its financial position, including its annual turnover. The email was admitted into evidence subject to an order limiting its use to evidence of the communication, and not evidence of the truth of any fact asserted in the communication.

On 14 December 2025, the defendants issued a notice to produce to the plaintiff in respect of essentially the same financial records that they had sought in their letter of 28 November 2025. As I have already mentioned, the notice was returnable on 4 February 2026. The plaintiff failed to produce any documents on that occasion, and informed the defendants and the Court for the first time that it intended to make an application to set aside the notice to produce. That application was made by the notice of motion filed on 5 February 2026 to which I have referred at [24] above. The plaintiff has taken no steps to have that motion heard.

The plaintiff has been on notice of the defendants’ concerns about its financial capacity to meet any adverse costs order, and the basis of those concerns, since 28 November 2025. The plaintiff has filed numerous affidavits in these proceedings since that time as referred to at [30]-[31] above, but has adduced no evidence of its financial position or capacity to meet any adverse costs order in these proceedings. Mr Green’s statements in his 5 December 2025 letter are not evidence of the truth of the matters asserted.

The plaintiff submitted that it is disputing the outstanding taxation liability, but did not adduce any evidence of any such dispute. I reject the submission made on behalf of the plaintiff that s 355-25 of the Taxation Administration Act 1953 (Cth) prohibits it from producing to the Court in response to the notice to produce, and tendering in evidence, documents relating to the outstanding tax liability and its taxation affairs generally. Section 355-25 prohibits disclosure of “protected information” by “taxation officers” and other entities and individuals referred to in s 355-15. That prohibition does not apply to the taxpayer, being the plaintiff in this case. In circumstances where the plaintiff has not adduced any evidence supporting its submission that it is disputing the tax liability, I reject the plaintiff’s submission that the Court should infer that the liability is disputed because it is common for taxpayers to dispute assessments of their tax liability.

The plaintiff has not offered any explanation for its failure to adduce any evidence at all of its financial position in response to the security for costs application. In particular, there is no reason why the plaintiff could not have tendered its financial reports for the past two financial years. Those were included in the categories of documents sought by the defendants in their 28 November 2025 letter and in the notice to produce issued on 14 December 2025.

The plaintiff submitted that the Court should infer that the defendants and their solicitor and counsel have detailed knowledge of the plaintiff’s financial position as a result of Ms Shea’s employment with the plaintiff, the past personal relationship and social interaction between Mr Green and the defendants, and past personal, social and professional interactions between Mr Green and/or the plaintiff on the one hand and each of Ms Nolan and Ms MacDonald on the other hand. The plaintiff submitted that it was therefore for the defendants, not the plaintiff, to adduce evidence of the plaintiff’s financial position. The plaintiff further submitted that the defendants and their legal representatives do not hold a genuine belief that the plaintiff will be unable to meet any adverse costs order that may be made against it in these proceedings and, indeed, that they know that the plaintiff is capable of discharging any such costs liability.

I decline to draw that inference and reject those submissions. The jurisdictional question is not whether any of the parties subjectively believe that the plaintiff will be able to meet any future adverse costs order, but whether the evidence adduced on the hearing of the security for costs application establishes a rational basis for the Court to believe that the plaintiff will be unable to do so. It is the plaintiff, not the defendants, who are in a position to adduce evidence of the plaintiff’s financial position and likely capacity (or incapacity) to meet any future adverse costs order. The plaintiff’s financial records are presumably within in its own possession or control. Even assuming that Ms Shea has some knowledge of matters relevant to the plaintiff’s ability to meet a future adverse costs order, that knowledge would not be up to date because her employment with the plaintiff ceased on 12 October 2025. Mr Green – the sole director of the plaintiff and the principal solicitor of the incorporated legal practice – could have given direct evidence about the plaintiff’s financial position, yet refrained from doing so in any of the lengthy affidavits that he affirmed and read (or sought to read) at the hearing of the security for costs motion. In those circumstances, the Court will not draw inferences in the plaintiff’s favour. The most natural inference is that any evidence that Mr Green could have given would not have been favourable to the plaintiff’s opposition to the security for costs motion. [8]

I accept the plaintiff’s submission that its $1.00 paid-up capital does not by itself support a conclusion that there is reason to believe that the plaintiff would be unable to meet any future adverse costs order. However, in circumstances where the plaintiff has not adduced any evidence of its financial position, the plaintiff’s outstanding tax liability is sufficient to satisfy the jurisdictional threshold for all of the reasons explained above.

The plaintiff raises the following matters which it submits favour the Court exercising the discretion by refusing an order for security for costs:

In relation to the first matter, it would be inappropriate for the Court to pre-judge the outcome of the defendants’ outstanding claims for interlocutory relief in their notice of motion filed on 27 November 2025. However, having regard to the features of the statement of claim to which I have referred at [8]-[17] above, I reject the plaintiff’s submission that the defendants have no prospects of obtaining an order striking out the statement of claim, in whole or in part, pursuant to r 14.28(1)(a)-(c) of the UCPR and order removing the second defendant as a party to the proceedings.

It is not possible to form a meaningful view about the strength or weakness of the plaintiff's substantive claims at this early stage of proceedings, before defences have been filed, for the purpose of determining the application for security for costs. [9] That is all the more so in circumstances where the statement of claim does not plead all of the facts that are material to the causes of action, and fails to plead the elements of some of the causes of action, as I have explained above. The plaintiff’s submission that Ms Shea has no prospect of successfully defending the proceedings – in other words, that the plaintiff will undoubtedly succeed – must therefore be rejected. As the defendants submitted, the parties’ prospects of success in the proceedings are a neutral factor in the exercise of the discretion in relation to security for costs.

The second matter only needs to be stated to be rejected. If it be the case that Ms Shea cannot afford to pay for the legal services that her solicitor and counsel are providing to her for the purpose of these proceedings (and I make no such finding), it does not follow that she has no liability to pay for those services or that she would not be entitled to a costs order in her favour if she successfully defends some or all of the plaintiff’s claims.

The third matter is irrelevant. The quantum of anticipated costs in respect of which security is sought has been calculated on the basis of the work that the defendants’ solicitor anticipates will be required to defend these proceedings, having regard to the nature and substance of the plaintiff’s claims as set out in the statement of claim, and the time that the defendants’ solicitor estimates will be taken to do that work. Those estimates have been prepared in the knowledge that the plaintiff claims no substantive relief against the second defendant despite having joined him as party to the proceedings. The defendants have chosen to be jointly represented by the same solicitors and counsel. There is no rational basis for declining to order security on the basis that the work to be undertaken will relate wholly or principally to the first defendant rather than the second defendant.

In relation to the fourth matter, the question that will arise for determination when the Court hears the plaintiff’s application for orders restraining Ms MacDonald and Ms Nolan from acting for the defendants in these proceedings will be whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice in these proceedings requires them to be so restrained. The plaintiff’s submissions opposing an order for security for costs failed to articulate any cogent reason why the Court might ultimately be persuaded that a fair-minded, reasonably informed member of the public would so conclude. [10] In those circumstances, I do not consider that the existence of that extant application warrants the Court exercising its discretion in relation to security for costs by declining to order security. In the event that the plaintiff succeeds in its application for orders restraining Ms MacDonald and Ms Nolan from acting for the defendants, and the defendants do not obtain alternative legal representation, it will be open to the plaintiff to apply to the Court to discharge the orders for security for costs in whole or in part on the basis that that is a material change in circumstances. The evidence presently before the Court does not support an inference that the defendants are likely to defend these proceedings without legal representation in the future.

In his letter to the defendants’ solicitor dated 5 December 2025, Mr Green stated that, even if there were reason to believe that the plaintiff would not be able to meet an adverse costs order, that would be attributable to Ms Shea’s conduct set out in the statement of claim. [11] If and to the extent that the plaintiff intended to maintain that submission at the hearing of the security for costs application, I reject it. A security for costs application is not to become a trial within a trial. It is therefore for a plaintiff opposing an order for security to establish with relatively straightforward and unambiguous evidence of a fairly compelling nature that there is a causal connection between conduct of the defendants and the plaintiff’s impecuniosity. [12] The plaintiff’s solicitor did not refer me to any such evidence in this case.

The evidence did not disclose any reason why an order for security in would work an injustice in the circumstances of this case.

As I have already mentioned, the defendants sought an order for security for their costs in a total sum of $300,000, payable in three tranches. That estimate was based on hourly rates for Ms MacDonald and a paralegal, and daily and hourly rates for counsel, that I regard as well within the reasonable range for commercial litigation. The plaintiff did not adduce any evidence challenging the reasonableness of those hourly and daily rates. However, Mr Green estimated the defendants’ total costs as $96,000 (or $67,200 on a party and party basis).

The main differences between Ms MacDonald’s estimate and Mr Green’s estimate is that Mr Green allows significantly less time for each stage of work that will be required to prepare the proceedings for hearing, assumes that counsel will not be briefed and that all work will be done by the solicitor (with no paralegal assistance) and that the solicitor will appear at that trial without counsel, and assumes that the duration of the trial will be two days rather than the four days estimated by Ms MacDonald.

In my opinion, Mr Green’s evidence significantly underestimates the amount of work required for each stage of pre-trial preparation, particularly having regard to the prolix pleadings and voluminous evidence that the defendants are likely to be required to plead and respond to. The plaintiff has filed and served thousands of pages of evidence at this early stage, even before any directions have been made for filing and service of the parties’ affidavits in chief. Having regard to the wide-ranging factual matters pleaded in the statement of claim, I consider that Ms MacDonald’s estimates of each stage of work, and the duration of the trial, are reasonable, subject to one qualification. It is perfectly reasonable for the defendants be represented by a solicitor and counsel in proceedings of this nature, and I reject Mr Green’s estimated quantum of costs which excluded any allowance for counsel.

The only qualification in relation to Ms MacDonald’s estimates is that I considered that some of those estimates allowed for duplication of work by the solicitor and counsel. After I identified examples of this during the hearing, the defendants did not seek to be heard against the quantum of security being reduced to $240,000 in order to remove that potential duplication, and payable in three equal tranches.

For all of the foregoing reasons, I made the following orders at the conclusion of the hearing of the defendants’ motion for security for costs on 13 February 2026: