Concrete Mining Structures Pty Ltd v Cellcrete Australia Pty Ltd (No 2) [2016] FCA 360

Concrete Mining Structures Pty Ltd v Cellcrete Australia Pty Ltd (No 2) [2016] FCA 360

All applications were dismissed because the Court was not satisfied that there was credible testimony giving reason to believe that the relevant parties would be unable to pay adverse costs. CMS and Cellcrete Australia had sufficient assets to meet any costs order at least until trial. Even if the discretion to order security had been enlivened, the Court would not have exercised it because any risk or deficiency was small, the relevant assets were sufficient, and aspects of the cross-claim were closely related to the existing claim. Security for the undertakings was also refused because further security was not justified on the evidence and CMS proposed to release Mr Reiniger from the...

Jurisdiction
Australia
Judgment Date
19 April 2016
Procedural Posture
Interlocutory Applications for Security for Costs and Security for Undertakings as to Damages in an Intellectual Property Proceeding / Determined on the Papers
Outcome
All applications dismissed; no order as to costs.
Legal Topics
['security for Costs' 'security for Undertakings as to Damages' 'impecuniosity' 'copyright and Industrial Designs' 'fiduciary Duties' 'confidential Information' 'cross Claims']
['practice and Procedure' 'intellectual Property' 'corporations'] ['security for Costs' 'security for Undertakings as to Damages' 'impecuniosity' 'copyright and Industrial Designs' 'fiduciary Duties' 'confidential Information' 'cross Claims']

Case Brief

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Procedural Posture

Interlocutory Applications for Security for Costs and Security for Undertakings as to Damages in an Intellectual Property Proceeding / Determined on the Papers

Legal Issues

  1. 1 ['Whether the Cellcrete parties should obtain security for costs from the CMS parties.' 'Whether the Cellcrete parties should obtain security from CMS or Mr Holt for undertakings as to damages given on 20 August 2015.' 'Whether the CMS parties should obtain security for costs from the Cellcrete parties for the cross-claim.']

Ratio Decidendi

All applications were dismissed because the Court was not satisfied that there was credible testimony giving reason to believe that the relevant parties would be unable to pay adverse costs. CMS and Cellcrete Australia had sufficient assets to meet any costs order at least until trial. Even if the discretion to order security had been enlivened, the Court would not have exercised it because any risk or deficiency was small, the relevant assets were sufficient, and aspects of the cross-claim were closely related to the existing claim. Security for the undertakings was also refused because further security was not justified on the evidence and CMS proposed to release Mr Reiniger from the...

Court Disposition

All applications dismissed; no order as to costs.

Orders

  • ["The respondents' application for security for costs and security for the undertakings given be dismissed." "The cross-respondents' application for security for costs be dismissed." 'There be no order as to costs of the applications in 1 and 2.']