Powell v Leighton [2011] FCA 730

Powell v Leighton [2011] FCA 730

Security for costs was ordered because Mr Powell and the corporate applicants were impecunious, there was no likelihood that any adverse costs order would be satisfied, Mr Powell's impecuniosity did not arise out of an act in respect of which relief was sought because he and the Hartz group were in serious financial difficulty before the September 2007 agreement, the claims appeared weak on the current pleadings and accepted findings in Powell v Business Expansion Capital [2008] TASSC 26, and further adverse costs orders in related litigation were discretionary matters supporting security.

Jurisdiction
Australia
Judgment Date
28 June 2011
Procedural Posture
Application for Security for Costs / Interlocutory Motions by Respondents for Security for Costs
Outcome
Respondents' security for costs applications granted; proceeding to be stayed against the relevant respondents if security is not provided by 19 July 2011.
Legal Topics
['security for Costs' 'impecunious Corporate Applicants' 'impecunious Personal Applicant' 'prospects of Success' 'federal Court Discretion Under S 56']
['costs' 'civil Procedure' 'trade Practices' 'contract' 'tort'] ['security for Costs' 'impecunious Corporate Applicants' 'impecunious Personal Applicant' 'prospects of Success' 'federal Court Discretion Under S 56']

Case Brief

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Procedural Posture

Application for Security for Costs / Interlocutory Motions by Respondents for Security for Costs

Legal Issues

  1. 1 ["Whether the applicants should be ordered to provide security for the respondents' costs under s 56 of the Federal Court of Australia Act 1976 (Cth)." 'Whether security for costs should be ordered against an impecunious personal applicant with an apparently weak case on current pleadings and accepted facts.' "Whether Mr Powell's impecuniosity arose out of conduct of the respondents in respect of which relief was sought." 'What amount of security should be ordered.']

Ratio Decidendi

Security for costs was ordered because Mr Powell and the corporate applicants were impecunious, there was no likelihood that any adverse costs order would be satisfied, Mr Powell's impecuniosity did not arise out of an act in respect of which relief was sought because he and the Hartz group were in serious financial difficulty before the September 2007 agreement, the claims appeared weak on the current pleadings and accepted findings in Powell v Business Expansion Capital [2008] TASSC 26, and further adverse costs orders in related litigation were discretionary matters supporting security.

Court Disposition

Respondents' security for costs applications granted; proceeding to be stayed against the relevant respondents if security is not provided by 19 July 2011.

Orders

  • ['On or before 19 July 2011 the applicants provide security in the amount of $157,500 in a manner satisfactory to the first and second respondents or, failing agreement by those respondents, then to the satisfaction of a Registrar of the Court.' 'On or before 19 July 2011 the applicants provide security in the...