Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Security for Costs) [2022] FCA 1371

Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Security for Costs) [2022] FCA 1371

Although the power to order security was enlivened because FKP was ordinarily resident outside Australia, the amount sought by Spirits was reduced because some work concerning procedural history was unlikely to be relevant and because the costs outcome of Spirits' amendment application was uncertain and more likely adverse to Spirits. Spirits' existing liabilities to FKP did not justify refusing security because, if FKP lost the proceeding, Spirits' eventual costs entitlement would exceed the foreign judgment debts and contingent costs entitlement relied on by FKP. The Court therefore ordered additional security in the reduced amount of AUD45,412.50.

Jurisdiction
Australia
Judgment Date
17 November 2022
Procedural Posture
Security for Costs Application in Trade Marks Cross Claim / Interlocutory Application Determined on the Papers
Outcome
Application for security for costs allowed in part; additional security ordered in the reduced amount of AUD45,412.50.
Legal Topics
['security for Costs' 'cross Claimants Ordinarily Resident Outside Australia' 'strike Out Pleadings' 'amendment of Pleadings' 'costs of Interlocutory Applications' 'foreign Judgment Debts' 'rectification of Register of Trade Marks']
['practice and Procedure' 'intellectual Property' 'trade Marks'] ['security for Costs' 'cross Claimants Ordinarily Resident Outside Australia' 'strike Out Pleadings' 'amendment of Pleadings' 'costs of Interlocutory Applications' 'foreign Judgment Debts' 'rectification of Register of Trade Marks']

Case Brief

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Procedural Posture

Security for Costs Application in Trade Marks Cross Claim / Interlocutory Application Determined on the Papers

Legal Issues

  1. 1 ['Whether security for costs should be ordered where the Cross-Claimants are ordinarily resident outside Australia.' 'Whether the security sought included an amount for work that was not relevant to any issue, including examination of the procedural history.' 'Whether Spirits should receive security for costs of its own amendment application.' "Whether Spirits' liabilities to FKP, including foreign judgment debts and contingent costs entitlements, should preclude security being ordered." 'Whether security should be provided in Australian dollars or US dollars.']

Ratio Decidendi

Although the power to order security was enlivened because FKP was ordinarily resident outside Australia, the amount sought by Spirits was reduced because some work concerning procedural history was unlikely to be relevant and because the costs outcome of Spirits' amendment application was uncertain and more likely adverse to Spirits. Spirits' existing liabilities to FKP did not justify refusing security because, if FKP lost the proceeding, Spirits' eventual costs entitlement would exceed the foreign judgment debts and contingent costs entitlement relied on by FKP. The Court therefore ordered additional security in the reduced amount of AUD45,412.50.

Court Disposition

Application for security for costs allowed in part; additional security ordered in the reduced amount of AUD45,412.50.

Orders

  • ["The Cross-Claimants provide additional security for the costs of the Cross-Respondent in respect of the Cross-Claim in the sum of AUD45,412.50 within 14 days by payment into the specified controlled monies account maintained by the Cross-Respondent's solicitors." 'The Security Amount is to be held in the Account...