Inghams Enterprises Pty Ltd v Bark Creek Pty Ltd t/as GRANDS Poultry Service & Anor [1997] FCA 463

Inghams Enterprises Pty Ltd v Bark Creek Pty Ltd t/as GRANDS Poultry Service & Anor [1997] FCA 463

The cross-claim was dismissed because Bark Creek failed to provide the ordered security within the 28 day time limit, more than four months had passed, Bark Creek had no present or future prospect of meeting the order, and the potential beneficiary of the cross-claim would not fund the security; Mr Barbaro was not a necessary party to the cross-claim, so his nominal presence did not justify refusing dismissal.

Jurisdiction
Australia
Judgment Date
30 May 1997
Procedural Posture
Application Under S.56(4) of the Federal Court of Australia Act 1976 for Dismissal of a Cross Claim for Default in Giving Security for Costs / Application Heard After Non Compliance With an Order for Security for Costs Made on 17 January 1997
Outcome
Cross-claim dismissed; Bark Creek Pty Ltd ordered to pay Inghams Enterprises Pty Ltd's costs of the cross-claim, with no costs order against Mr Barbaro.
Legal Topics
['default in Giving Security for Costs' 'dismissal of Proceedings' 'corporation Unable to Pay Costs' 'cross Claim']
['practice and Procedure' 'corporations' 'security for Costs'] ['default in Giving Security for Costs' 'dismissal of Proceedings' 'corporation Unable to Pay Costs' 'cross Claim']

Case Brief

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Procedural Posture

Application Under S.56(4) of the Federal Court of Australia Act 1976 for Dismissal of a Cross Claim for Default in Giving Security for Costs / Application Heard After Non Compliance With an Order for Security for Costs Made on 17 January 1997

Legal Issues

  1. 1 ['Whether the Federal Court had power to dismiss the cross-claim where Bark Creek had not given security for costs ordered under s.1335 of the Corporations Law and the rules of court.' 'Whether the cross-claim should be dismissed despite Mr Barbaro being a co-cross-claimant against whom security for costs had not been ordered.' 'Whether dismissal of the cross-claim would be palpably unjust.']

Ratio Decidendi

The cross-claim was dismissed because Bark Creek failed to provide the ordered security within the 28 day time limit, more than four months had passed, Bark Creek had no present or future prospect of meeting the order, and the potential beneficiary of the cross-claim would not fund the security; Mr Barbaro was not a necessary party to the cross-claim, so his nominal presence did not justify refusing dismissal.

Court Disposition

Cross-claim dismissed; Bark Creek Pty Ltd ordered to pay Inghams Enterprises Pty Ltd's costs of the cross-claim, with no costs order against Mr Barbaro.

Orders

  • ['The cross-claim be dismissed.' "Bark Creek Pty Ltd pay Inghams Enterprises Pty Ltd's costs of the cross-claim."]