Billinudgel Pastoral Co Pty Ltd & Ors v Westpac Banking Corp & Ors [1998] FCA 278

Billinudgel Pastoral Co Pty Ltd & Ors v Westpac Banking Corp & Ors [1998] FCA 278

The applicants failed to provide any acceptable explanation for their non-compliance with the 29 August 1997 further security order, did not put direct sworn evidence from the applicants or Lontana addressing financial circumstances or Lontana's interest, did not show a change in circumstances warranting variation in their favour, and did not show that a guillotine order would stifle the litigation; accordingly the circumstances justified an order that the proceedings stand dismissed with costs unless the further security was provided by 4.00 pm on 1 May 1998.

Jurisdiction
Australia
Judgment Date
27 March 1998
Procedural Posture
Notice of Motion for Variation of Security for Costs Order / Application for Guillotine Order After Non Compliance With Previous Further Security for Costs Order
Outcome
Guillotine order made; the applicants' proceedings to be dismissed with costs if further security was not provided by the specified deadline.
Legal Topics
['security for Costs' 'variation of Previous Order' 'guillotine Order' 'dismissal for Failure to Provide Security' 'court Discretion']
['practice and Procedure' 'costs'] ['security for Costs' 'variation of Previous Order' 'guillotine Order' 'dismissal for Failure to Provide Security' 'court Discretion']

Case Brief

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Procedural Posture

Notice of Motion for Variation of Security for Costs Order / Application for Guillotine Order After Non Compliance With Previous Further Security for Costs Order

Legal Issues

  1. 1 ['Whether the order made on 29 August 1997 requiring the first, second and third applicants to provide further security for costs should be varied to provide for dismissal if security was not provided by a certain date.' 'Whether the applicants had provided an acceptable explanation for failing to provide further security for costs.' 'Whether a guillotine order would stifle or frustrate the litigation.']

Ratio Decidendi

The applicants failed to provide any acceptable explanation for their non-compliance with the 29 August 1997 further security order, did not put direct sworn evidence from the applicants or Lontana addressing financial circumstances or Lontana's interest, did not show a change in circumstances warranting variation in their favour, and did not show that a guillotine order would stifle the litigation; accordingly the circumstances justified an order that the proceedings stand dismissed with costs unless the further security was provided by 4.00 pm on 1 May 1998.

Court Disposition

Guillotine order made; the applicants' proceedings to be dismissed with costs if further security was not provided by the specified deadline.

Orders

  • ['The first, second and third applicants provide the further security for costs in accordance with the order made by Cooper J on 29 August 1997 at or before 4.00 pm on 1 May 1998.' "In default of compliance by the first, second and third applicants with order 1 above, the applicants' proceedings be dismissed with...