Doran, M.A. & Anor v Cottam, M.T. & Ors [1995] FCA 439

Doran, M.A. & Anor v Cottam, M.T. & Ors [1995] FCA 439

Security for future costs was justified because Waimex's inability to satisfy an adverse costs order was conceded, Waimex had not shown that an order would shut it out where Mrs Doran was a half shareholder and director and gave no evidence of inability to provide security, and Mr Doran's undertaking was of limited value. However, because the first and second respondents delayed in seeking security and Waimex had incurred substantial costs in the meantime, security should not be ordered for costs incurred to date. A partial order of $13,000 for future costs was appropriate.

Jurisdiction
Australia
Judgment Date
27 June 1995
Procedural Posture
Application for Security for Costs in Proceedings Alleging Misleading or Deceptive Conduct / Interlocutory Motion on Notice by the First and Second Respondents
Outcome
The motion was granted in part; Waimex Pty Ltd was ordered to provide security for costs in the total sum of $13,000, with proceedings stayed until initial security of $5,000 was provided except for mediation or other non-judicial dispute resolution proceedings.
Legal Topics
['security for Costs' 'discretion to Order Security' 'corporate Plaintiff Impecuniosity' 'delay in Seeking Security' 'misleading or Deceptive Conduct']
['practice and Procedure' 'corporations Law' 'trade Practices'] ['security for Costs' 'discretion to Order Security' 'corporate Plaintiff Impecuniosity' 'delay in Seeking Security' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Application for Security for Costs in Proceedings Alleging Misleading or Deceptive Conduct / Interlocutory Motion on Notice by the First and Second Respondents

Legal Issues

  1. 1 ["Whether Waimex Pty Ltd should be ordered to provide security for the first and second respondents' costs." 'Whether an order for security would shut Waimex out of the proceedings.' 'Whether delay in bringing the motion should affect the making or amount of any security order.' "Whether Mr Doran's undertaking to be personally liable for Waimex's costs and Mrs Doran's refusal to provide security affected the discretion."]

Ratio Decidendi

Security for future costs was justified because Waimex's inability to satisfy an adverse costs order was conceded, Waimex had not shown that an order would shut it out where Mrs Doran was a half shareholder and director and gave no evidence of inability to provide security, and Mr Doran's undertaking was of limited value. However, because the first and second respondents delayed in seeking security and Waimex had incurred substantial costs in the meantime, security should not be ordered for costs incurred to date. A partial order of $13,000 for future costs was appropriate.

Court Disposition

The motion was granted in part; Waimex Pty Ltd was ordered to provide security for costs in the total sum of $13,000, with proceedings stayed until initial security of $5,000 was provided except for mediation or other non-judicial dispute resolution proceedings.

Orders

  • ['The second applicant provide security in the sum of $13,000 for the payment of costs that may be awarded to the first and second respondents against the second applicant.' 'In respect of Order 1, security be provided in the sum of $5,000 within twenty-one days and in the sum of a further $8,000 within seven days...