Why Burleigh Connect One Pty Ltd v 6E1 Pty Ltd & Ors [2026] QSC 170 demonstrates the importance of choosing the right procedural moment to seek security for costs
Author – Dane Thornburgh – Senior Associate Quinn Law Group
Most commercial litigators appreciate that delaying an application for security for costs can carry significant risks. Delay may expose a defendant to substantial unrecoverable costs before any protection is obtained.
The recent Queensland Supreme Court decision in Burleigh Connect One Pty Ltd v 6E1 Pty Ltd & Ors [2026] QSC 170 highlights another important strategic consideration. While the defendants were ultimately successful in obtaining an order for security for costs, the Court’s reasons provide a useful reminder that the timing of the application may materially affect the Court’s ability to assess the appropriate amount of security to be provided.
The Procedural Context
Although Burleigh Connect One was principally concerned with a number of substantive issues arising in the proceeding, the Court was also required to determine an application for security for costs. Whilst that issue occupied only part of the judgment, it contains several valuable observations for practitioners concerning the practical difficulties of assessing security where litigation remains procedurally fluid.
The application came before the Court while the proceedings were still evolving. Pleadings had not finally closed, amendments remained under consideration and the ultimate scope of the dispute had not yet crystallised. Those circumstances required the Court to determine not only whether security should be ordered, but also the much more difficult question of how much security was appropriate.
It is this procedural aspect of the decision that, in my view, provides one of the more useful practical lessons for commercial litigators.
Security Was Granted — But the Quantum Was the Real Challenge
Importantly, the defendants succeeded in obtaining an order for security for costs.
The significance of the decision, however, lies less in the fact that security was ordered and more in the Court’s observations concerning the practical difficulty of fixing an appropriate amount where the litigation remained procedurally unsettled.
Security for costs is intended to protect a defendant against the risk of being unable to recover a future costs order. Determining the amount of that protection requires the Court
to estimate the reasonable costs likely to be incurred throughout the balance of the proceeding.
That task becomes considerably more difficult where pleadings remain open and amendments are still contemplated.
At that stage of the litigation, the Court cannot know with certainty whether additional causes of action, further factual allegations, new defences or expert evidence may ultimately expand the scope of the dispute. Equally, issues that presently appear significant may ultimately disappear as the pleadings mature.
The Court is therefore required to undertake what is, in many respects, an informed prediction of future litigation costs.
Why Timing Matters
This is where the strategic timing of the application becomes particularly important.
Where pleadings remain incomplete, future costs can only be estimated against a procedural landscape that may continue to change. As a consequence, there is an increased risk that the amount ultimately ordered may prove either inadequate or excessive.
If the proceedings later expand through amendments, the security originally ordered may no longer provide meaningful protection. Although the Court retains power to order additional security, further applications inevitably generate additional costs, consume court resources and require another exercise of judicial discretion.
Conversely, where defendants seek security based upon a broad estimate of every conceivable issue that may arise, the Court may consider that assessment premature and discount the amount sought because the future course of the litigation remains uncertain.
Neither outcome is desirable.
Choosing the Appropriate Procedural Moment
The decision serves as a reminder that the strategic question is not simply whether security should be sought.
It is also whether the proceedings have reached the procedural stage at which the Court can reliably assess the likely future costs of the litigation.
Among the matters practitioners should consider are:
- Have the pleadings finally closed?
- Are further amendments likely?
- Have the real issues requiring determination crystallised?
- Is the future course of the proceeding capable of reasonable assessment?
- Can the likely costs through to trial now be estimated with confidence?
These considerations are not merely procedural housekeeping. They go directly to the Court’s ability to determine an appropriate quantum of security.
There will, of course, be cases where an urgent application is entirely justified, particularly where there is evidence of asset dissipation or rapidly deteriorating financial circumstances. Equally, defendants should not postpone an application simply to achieve procedural perfection.
Rather, the lesson is that practitioners should carefully balance the need for early protection against the Court’s ability to accurately assess the amount of security required.
The Practical Takeaway
The principal takeaway from Burleigh Connect One is not that security should never be sought before pleadings have closed.
Rather, it is that practitioners should carefully consider whether the Court has sufficient procedural certainty to accurately determine the appropriate quantum of security sought.
Whilst the defendants successfully obtained security for costs, the judgment demonstrates the inherent difficulty of fixing an amount that properly protects the defendant where the scope of the litigation remains uncertain.
Like many aspects of commercial litigation, timing is not simply about obtaining the order—it is about obtaining an order that provides meaningful and appropriate protection throughout the balance of the proceeding.
For commercial litigators, that is perhaps the most valuable procedural lesson arising from the Court’s consideration of the security for costs application.
Dane Thornburgh
Senior Solicitor | Commercial Litigation
Quinn Law Group
dane@qlglaw.com.au – https://www.linkedin.com/in/danethornburgh/
This article provides general commentary on a recent decision of the Queensland Supreme Court and should not be relied upon as legal advice.