Tan Kah Hock v AWAP SGT 26 Investment Ltd [2008] FCA 540

Tan Kah Hock v AWAP SGT 26 Investment Ltd [2008] FCA 540

Security for costs was ordered because the applicants conceded that they were ordinarily resident outside Australia, had no present assets within the jurisdiction available to meet a costs order, and produced no evidence of assets in Singapore or elsewhere against which a registered Australian judgment could be enforced. The possibility that AWAP might declare dividends to the first and second applicants was not a present asset because declaration of dividends was discretionary. Those matters were not outweighed by any countervailing circumstance.

Jurisdiction
Australia
Judgment Date
23 April 2008
Procedural Posture
Motion for Security for Costs and Stay of Proceedings / Before Completion of Discovery
Outcome
Respondents' motion granted; proceedings stayed until security is provided.
Legal Topics
['security for Costs' 'applicant Ordinarily Resident Outside Australia' 'assets Within the Jurisdiction' 'enforcement of Australian Judgments Overseas' 'stay of Proceedings Pending Security']
['practice and Procedure'] ['security for Costs' 'applicant Ordinarily Resident Outside Australia' 'assets Within the Jurisdiction' 'enforcement of Australian Judgments Overseas' 'stay of Proceedings Pending Security']

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Procedural Posture

Motion for Security for Costs and Stay of Proceedings / Before Completion of Discovery

Legal Issues

  1. 1 ["Whether the applicants should be ordered to provide security for the respondents' costs because they are ordinarily resident outside Australia and have no assets within the jurisdiction." "Whether the applicants' shareholding in AWAP SGT 26 Investment Limited provided an adequate fund in Australia to satisfy any costs order." 'Whether the ability to register and enforce an Australian judgment in Singapore justified refusing or limiting security for costs.' 'What amount and form of security should be ordered.']

Ratio Decidendi

Security for costs was ordered because the applicants conceded that they were ordinarily resident outside Australia, had no present assets within the jurisdiction available to meet a costs order, and produced no evidence of assets in Singapore or elsewhere against which a registered Australian judgment could be enforced. The possibility that AWAP might declare dividends to the first and second applicants was not a present asset because declaration of dividends was discretionary. Those matters were not outweighed by any countervailing circumstance.

Court Disposition

Respondents' motion granted; proceedings stayed until security is provided.

Orders

  • ["The applicants, within 28 days of the date of this order give security in the amount of $115,000 by way of an Australia bank guarantee or bond, in a form acceptable to the respondents or fixed by the Court, for the respondents' costs of and incidental to this proceeding up to the provision of discovery including...