Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd [2021] NSWCA 90

Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd [2021] NSWCA 90

The financial material produced by Valmont, including limited disclosure, fluctuating cash balances, an unpaid net judgment debt and costs liability, absence of current information for one bank account, uncertainty about related party loans and tax liabilities, provided a rational basis to believe that Valmont would be unable to pay Giorgio Armani's costs if unsuccessful in the appeal. Because Valmont disavowed any argument that security would stultify the appeal or that Giorgio Armani caused any impecuniosity, and delay was largely attributable to Valmont's delayed financial disclosure, the discretion under s 1335(1) was exercised to order security, but in the lower amount of $50,000...

Jurisdiction
Australia
Judgment Date
17 May 2021
Procedural Posture
Appeal From District Court Civil Proceedings; Respondent's Notice of Motion for Security for Costs / Court of Appeal Motion for Security for Costs Before Hearing of the Appeal
Outcome
Security for costs ordered; appeal to be stayed if security not provided; costs of the motion to be costs in the appeal.
Legal Topics
['security for Costs' 'quantum and Form of Security' "corporation's Ability to Pay Costs" 'stay of Appeal for Non Provision of Security']
['costs' 'civil Procedure' 'corporations Law'] ['security for Costs' 'quantum and Form of Security' "corporation's Ability to Pay Costs" 'stay of Appeal for Non Provision of Security']

Case Brief

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Procedural Posture

Appeal From District Court Civil Proceedings; Respondent's Notice of Motion for Security for Costs / Court of Appeal Motion for Security for Costs Before Hearing of the Appeal

Legal Issues

  1. 1 ["Whether Giorgio Armani Australia Pty Ltd established by credible testimony a reason to believe that Valmont Interiors Pty Ltd would be unable to pay the respondent's costs if unsuccessful in the appeal." 'Whether the Court should exercise its discretion under s 1335(1) of the Corporations Act 2001 (Cth) to order security for costs.' 'What amount and form of security should be ordered.' "What costs order should be made on the respondent's motion."]

Ratio Decidendi

The financial material produced by Valmont, including limited disclosure, fluctuating cash balances, an unpaid net judgment debt and costs liability, absence of current information for one bank account, uncertainty about related party loans and tax liabilities, provided a rational basis to believe that Valmont would be unable to pay Giorgio Armani's costs if unsuccessful in the appeal. Because Valmont disavowed any argument that security would stultify the appeal or that Giorgio Armani caused any impecuniosity, and delay was largely attributable to Valmont's delayed financial disclosure, the discretion under s 1335(1) was exercised to order security, but in the lower amount of $50,000...

Court Disposition

Security for costs ordered; appeal to be stayed if security not provided; costs of the motion to be costs in the appeal.

Orders

  • ["Pursuant to s 1335(1) of the Corporations Act 2001 (Cth), the appellant is to provide security for the payment of the respondent's costs of the appeal, to be paid in the form of a bank guarantee from an Australian trading bank, or by payment into Court, in favour of the respondent, for an amount of $50,000.00,...