Austcorp Project No. 20 Pty Limited v The Trust Co (PTAL) Limited, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (in liq) (No 4) [2015] FCA 850

Austcorp Project No. 20 Pty Limited v The Trust Co (PTAL) Limited, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (in liq) (No 4) [2015] FCA 850

Although termination of the litigation funding agreement was a material change of circumstances, it was only a factor supporting the making of security for costs orders and did not justify altering the precise terms of security. The alleged new evidence improving the plaintiffs' prospects was irrelevant because the original security application proceeded on the basis that the claim was bona fide with reasonable prospects. In the absence of evidence that the existing orders would stifle the litigation, and given the risk of further disputes under the proposed instalment regime, the variation application was dismissed. Because the plaintiffs had not satisfactorily explained their...

Jurisdiction
Australia
Judgment Date
14 August 2015
Procedural Posture
Practice and Procedure; Security for Costs / Interlocutory Applications to Vary Security for Costs Orders and for Summary Dismissal
Outcome
The plaintiffs' application to vary the security for costs orders was dismissed with costs, and self-executing orders were made requiring compliance with the security for costs orders by 9.00 am on 15 September 2015 or dismissal of the proceeding against PTAL and the receivers with costs.
Legal Topics
['security for Costs' 'variation of Interlocutory Orders' 'summary Dismissal' 'self Executing Orders' 'case Management']
['practice and Procedure'] ['security for Costs' 'variation of Interlocutory Orders' 'summary Dismissal' 'self Executing Orders' 'case Management']

Case Brief

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Procedural Posture

Practice and Procedure; Security for Costs / Interlocutory Applications to Vary Security for Costs Orders and for Summary Dismissal

Legal Issues

  1. 1 ['Whether the security for costs orders made on 15 December 2014 should be varied because of a material change of circumstances or new material.' "Whether the termination of the plaintiffs' conditional litigation funding agreement justified varying the form or timing of security for costs." "Whether evidence said to strengthen the plaintiffs' prospects of success was relevant to variation of the security for costs orders." 'Whether the proceedings should be summarily dismissed, or self-executing dismissal orders made, because of non-compliance with security for costs orders.']

Ratio Decidendi

Although termination of the litigation funding agreement was a material change of circumstances, it was only a factor supporting the making of security for costs orders and did not justify altering the precise terms of security. The alleged new evidence improving the plaintiffs' prospects was irrelevant because the original security application proceeded on the basis that the claim was bona fide with reasonable prospects. In the absence of evidence that the existing orders would stifle the litigation, and given the risk of further disputes under the proposed instalment regime, the variation application was dismissed. Because the plaintiffs had not satisfactorily explained their...

Court Disposition

The plaintiffs' application to vary the security for costs orders was dismissed with costs, and self-executing orders were made requiring compliance with the security for costs orders by 9.00 am on 15 September 2015 or dismissal of the proceeding against PTAL and the receivers with costs.

Orders

  • ["The plaintiffs' interlocutory process dated 13 July 2015 be dismissed with costs." "Pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) and rr 5.21(a) and 19.01(1)(c) of the Federal Court Rules 2011 (Cth), if the plaintiffs do not, by 9.00 am on 15 September 2015, comply with order 3 of the orders...