Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No. 2) [2010] FCA 1209

Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No. 2) [2010] FCA 1209

Further security for costs was warranted because the applicants were not resident in Australia and had no assets in the jurisdiction, creating a substantial risk that Colliers could not recover costs if successful; Colliers' delay and expanded defence were explained by the evidence served and did not amount to conduct contrary to s 37M or cause oppression or prejudice sufficient to refuse security; and there was no suggestion that an order would stifle the litigation. Having regard to the estimated costs and the absence of a precise Schedule 2 calculation, the appropriate further security was $250,000.

Jurisdiction
Australia
Judgment Date
05 November 2010
Procedural Posture
Interlocutory Application for Further Security for Costs in Proceedings Alleging Misleading and Deceptive Conduct Under the Trade Practices Act 1974 (cth) / Notice of Motion for Additional Security for Costs
Outcome
Further security for costs ordered.
Legal Topics
['security for Costs' 'no Assets in Jurisdiction' 'overarching Purpose of Civil Practice and Procedure' 'delay and Prejudice' 'misleading and Deceptive Conduct' 'apportionment and Concurrent Wrongdoers']
['practice and Procedure' 'costs' 'trade Practices'] ['security for Costs' 'no Assets in Jurisdiction' 'overarching Purpose of Civil Practice and Procedure' 'delay and Prejudice' 'misleading and Deceptive Conduct' 'apportionment and Concurrent Wrongdoers']

Case Brief

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Procedural Posture

Interlocutory Application for Further Security for Costs in Proceedings Alleging Misleading and Deceptive Conduct Under the Trade Practices Act 1974 (cth) / Notice of Motion for Additional Security for Costs

Legal Issues

  1. 1 ["Whether the applicants should be ordered to provide further security for the first respondent's costs where they are not resident in Australia and have no assets in the jurisdiction." "Whether Colliers' conduct in preparing the matter for hearing, including delay and expansion of issues, was contrary to s 37M of the Federal Court of Australia Act 1976 (Cth) or made an order for further security oppressive or prejudicial." 'What quantum of further security for costs should be ordered.']

Ratio Decidendi

Further security for costs was warranted because the applicants were not resident in Australia and had no assets in the jurisdiction, creating a substantial risk that Colliers could not recover costs if successful; Colliers' delay and expanded defence were explained by the evidence served and did not amount to conduct contrary to s 37M or cause oppression or prejudice sufficient to refuse security; and there was no suggestion that an order would stifle the litigation. Having regard to the estimated costs and the absence of a precise Schedule 2 calculation, the appropriate further security was $250,000.

Court Disposition

Further security for costs ordered.

Orders

  • ['The Applicants provide security in the sum of $250,000 within 28 days of this order.' 'The costs of this motion be the costs in the proceedings.']