Ansett Australia Ltd (Subject to Deed of Company Arrangement) v Ansett Regional Airlines Pty Ltd [2007] FCA 906

Ansett Australia Ltd (Subject to Deed of Company Arrangement) v Ansett Regional Airlines Pty Ltd [2007] FCA 906

The respondents did not establish that there is reason to believe the applicant would be unable to pay the costs if unsuccessful. The applicant's financial position and asset pool are sufficient, and the statutory precondition for a security for costs order was not satisfied. Indemnity costs are appropriate as the application was bound to fail and the respondents were put on notice.

Parties
Applicant/cross Respondent: Ansett Australia Ltd (Subject to Deed of Company Arrangement) (ACN 004 209 410); First Respondent/first Cross Claimant: Ansett Regional Airlines Pty Ltd (ACN 117 617 982); Second Respondent/second Cross Claimant: Ansett Resources & Industries Pty Ltd (ACN 116 913 663); Third Respondent/third Cross Claimant: Ansett Energy Limited (ACN 123 776 652); Fourth Respondent: Terrence John Byrt; Fifth Respondent: Robert William Kirkby
Jurisdiction
Australia
Judgment Date
14 June 2007
Procedural Posture
Application/interlocutory Motion / Interlocutory Decision on Security for Costs Prior to Liability Trial
Outcome
Application dismissed with costs on an indemnity basis
Legal Topics
Security for Costs, Trade Marks, Deed of Company Arrangement, Costs – Indemnity Basis
Corporations Law Intellectual Property Law Civil Procedure Security for Costs Trade Marks Deed of Company Arrangement Costs – Indemnity Basis

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 14 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Ansett Australia Ltd (Subject to Deed of Company Arrangement) (ACN 004 209 410)

Applicant/cross Respondent

Ansett Regional Airlines Pty Ltd (ACN 117 617 982)

First Respondent/first Cross Claimant

Ansett Resources & Industries Pty Ltd (ACN 116 913 663)

Second Respondent/second Cross Claimant

Ansett Energy Limited (ACN 123 776 652)

Third Respondent/third Cross Claimant

Terrence John Byrt

Fourth Respondent

Robert William Kirkby

Fifth Respondent

Procedural Posture

Application/interlocutory Motion / Interlocutory Decision on Security for Costs Prior to Liability Trial

Legal Issues

  1. 1 Whether security for costs should be ordered against a company under a Deed of Company Arrangement
  2. 2 Whether the applicant would be unable to pay the respondents' costs if unsuccessful
  3. 3 If indemnity costs should be awarded against the respondents

Ratio Decidendi

The respondents did not establish that there is reason to believe the applicant would be unable to pay the costs if unsuccessful. The applicant's financial position and asset pool are sufficient, and the statutory precondition for a security for costs order was not satisfied. Indemnity costs are appropriate as the application was bound to fail and the respondents were put on notice.

Court Disposition

Application dismissed with costs on an indemnity basis

Orders

  • Issues of liability to be determined prior to and separately from quantum.
  • Respondents' motion for security for costs dismissed.