Frigger v Banning (No 2) [2016] FCA 749

Frigger v Banning (No 2) [2016] FCA 749

The possible outcome of related Supreme Court litigation was not a legitimate new basis to vary the security order, and the applicants' estimate of $10,000 to $15,000 seriously underestimated the work covered by the security order. However, the respondents' estimate supporting $75,000 was somewhat higher than necessary when assessed on a Sch 3 basis and not on the footing of indemnity costs or an uplift. Dealing with the matter in the round, the appropriate security was $60,000. Given the applicants' non-compliance with the earlier order and the timing of their variation application, a springing order was warranted so that the proceeding would stand dismissed with costs if the varied...

Jurisdiction
Australia
Judgment Date
24 June 2016
Procedural Posture
Commercial and Corporations; Corporations and Corporate Insolvency Proceeding Concerning Security for Costs / Interlocutory Applications by Respondents to Dismiss for Default of Security for Costs Order and by Applicants to Vary Security for Costs Order
Outcome
Security for costs order varied from $75,000 to $60,000; proceeding to stand dismissed with costs if varied security not paid by the specified deadline; interlocutory application costs ordered to be costs in the cause.
Legal Topics
['security for Costs' 'default of Security for Costs Order' 'dismissal for Default' 'variation of Security for Costs Order' 'material Change of Circumstances' 'discovery of New Material']
['practice and Procedure' 'commercial and Corporations' 'corporations and Corporate Insolvency'] ['security for Costs' 'default of Security for Costs Order' 'dismissal for Default' 'variation of Security for Costs Order' 'material Change of Circumstances' 'discovery of New Material']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Commercial and Corporations; Corporations and Corporate Insolvency Proceeding Concerning Security for Costs / Interlocutory Applications by Respondents to Dismiss for Default of Security for Costs Order and by Applicants to Vary Security for Costs Order

Legal Issues

  1. 1 ['Whether the proceeding should be dismissed for non-payment of the security for costs sum ordered on 13 April 2016.' 'Whether the security for costs order should be varied, including whether there was a material change of circumstances or new material that could not reasonably have been before the Court at the original hearing.' 'What quantum of security for costs should be ordered if the order were varied.' 'Whether a springing order should be made dismissing the proceeding if varied security was not paid by a specified time.']

Ratio Decidendi

The possible outcome of related Supreme Court litigation was not a legitimate new basis to vary the security order, and the applicants' estimate of $10,000 to $15,000 seriously underestimated the work covered by the security order. However, the respondents' estimate supporting $75,000 was somewhat higher than necessary when assessed on a Sch 3 basis and not on the footing of indemnity costs or an uplift. Dealing with the matter in the round, the appropriate security was $60,000. Given the applicants' non-compliance with the earlier order and the timing of their variation application, a springing order was warranted so that the proceeding would stand dismissed with costs if the varied...

Court Disposition

Security for costs order varied from $75,000 to $60,000; proceeding to stand dismissed with costs if varied security not paid by the specified deadline; interlocutory application costs ordered to be costs in the cause.

Orders

  • ['The order for security for costs against the applicants made 13 April 2016 is varied in respect of quantum so that instead of security being ordered in the sum $75,000, it is now ordered in the sum of $60,000.' 'If the order for security for costs against the applicants in the varied sum of $60,000 is not complied...