Cahalan, Adrienne v Dalman Nominees Pty Ltd [1997] FCA 641

Cahalan, Adrienne v Dalman Nominees Pty Ltd [1997] FCA 641

Because Dalman was unable to provide security and the evidence did not show that an order for security would frustrate the litigation, did not establish Mr Harvey's impecuniosity, and did not identify whether others stood to benefit, Mr Harvey's undertaking to assume personal liability was not sufficient by itself. It was appropriate to accept his personal undertaking but require security for costs in the nature of a charge over his assets, with the amount and form to be determined because the claimed $30,000 was not sufficiently particularised or substantiated.

Jurisdiction
Australia
Judgment Date
21 July 1997
Procedural Posture
In Admiralty; Application for Security for Costs in Respect of a Cross Claim / Reasons for Judgment on Interlocutory Application for Security for Costs
Outcome
Security for costs ordered, with the amount and form to be determined by the Court; further hearing required on quantum.
Legal Topics
['security for Costs' 'corporate Cross Claimant Unable to Provide Security' 'director Undertaking to Assume Personal Liability for Costs' "charge Over Director's Assets" 'stay of Proceedings Pending Security']
['civil Procedure' 'costs' 'corporations'] ['security for Costs' 'corporate Cross Claimant Unable to Provide Security' 'director Undertaking to Assume Personal Liability for Costs' "charge Over Director's Assets" 'stay of Proceedings Pending Security']

Case Brief

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Procedural Posture

In Admiralty; Application for Security for Costs in Respect of a Cross Claim / Reasons for Judgment on Interlocutory Application for Security for Costs

Legal Issues

  1. 1 ["Whether Dalman Nominees Pty Limited should provide security for Ms Cahalan's costs of defending the cross-claim." "Whether Mr Harvey's personal undertaking to pay any costs order against Dalman was sufficient to avoid an order for security for costs." "Whether it was appropriate to secure Mr Harvey's personal liability by a charge over his assets." 'What amount of security should be ordered.']

Ratio Decidendi

Because Dalman was unable to provide security and the evidence did not show that an order for security would frustrate the litigation, did not establish Mr Harvey's impecuniosity, and did not identify whether others stood to benefit, Mr Harvey's undertaking to assume personal liability was not sufficient by itself. It was appropriate to accept his personal undertaking but require security for costs in the nature of a charge over his assets, with the amount and form to be determined because the claimed $30,000 was not sufficiently particularised or substantiated.

Court Disposition

Security for costs ordered, with the amount and form to be determined by the Court; further hearing required on quantum.

Orders

  • ['Security for costs be provided in an amount and form to be determined by the Court.' 'The cross-defendant pay the costs of this application.']