Ambergate Limited v CMA Corporation Limited (Administrators Appointed) [2014] FCA 948

Ambergate Limited v CMA Corporation Limited (Administrators Appointed) [2014] FCA 948

The applicant was a foreign corporation incorporated in New Zealand, had no assets in Australia, and adduced no evidence of any assets in New Zealand. It did not discharge the practical onus of showing that the second respondent would not be unreasonably disadvantaged if a costs order were made against it. The second respondent's estimate supported security of $150,000 as within a responsible range, including possible enforcement costs in New Zealand, and staged payment with a stay until the first instalment was appropriate.

Jurisdiction
Australia
Judgment Date
02 September 2014
Procedural Posture
Application for Security for Costs / Interlocutory Application
Outcome
The second respondent's application for security for costs was granted in the amount of $150,000, with the first instalment payable within 30 days; the proceeding was stayed until payment of the first instalment; the applicant was ordered to pay the second respondent's costs of the security for costs application;...
Legal Topics
['security for Costs' 'foreign Corporation Applicant' 'stay of Proceedings' 'payment Into Court']
['practice and Procedure' 'costs'] ['security for Costs' 'foreign Corporation Applicant' 'stay of Proceedings' 'payment Into Court']

Case Brief

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Procedural Posture

Application for Security for Costs / Interlocutory Application

Legal Issues

  1. 1 ['Whether a foreign corporation incorporated in New Zealand with no assets in Australia and no evidence of assets in New Zealand should provide security for costs.' 'What amount of security for costs should be ordered.' 'Whether the proceeding should be stayed until payment of the first instalment of security.' 'Whether the proceeding should be dismissed automatically if an instalment is not paid when due.']

Ratio Decidendi

The applicant was a foreign corporation incorporated in New Zealand, had no assets in Australia, and adduced no evidence of any assets in New Zealand. It did not discharge the practical onus of showing that the second respondent would not be unreasonably disadvantaged if a costs order were made against it. The second respondent's estimate supported security of $150,000 as within a responsible range, including possible enforcement costs in New Zealand, and staged payment with a stay until the first instalment was appropriate.

Court Disposition

The second respondent's application for security for costs was granted in the amount of $150,000, with the first instalment payable within 30 days; the proceeding was stayed until payment of the first instalment; the applicant was ordered to pay the second respondent's costs of the security for costs application;...

Orders

  • ["Pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth), the applicant is to give security for the payment of the second respondent's costs of the proceeding that may be awarded against it in the amount of $150,000 by payment into Court by four instalments: $25,000 within 30 days; $50,000 by the date by...