BJC Media Pty Ltd v Australis Media Ltd & Ors [1995] FCA 135

BJC Media Pty Ltd v Australis Media Ltd & Ors [1995] FCA 135

The uncontradicted affidavit evidence showed that BJC had net assets of $10,000 and paid-up capital of $10,000, with no operating profit or loss for the relevant financial year, while the estimated party-party costs of Australis and Rose were substantially higher. BJC adduced no evidence of its current financial position, no evidence that security would stifle the claim, and no evidence that its lack of funds was caused by the respondents' conduct. The Court was therefore satisfied under Corporations Law s 1335 that security for costs should be ordered and the proceedings stayed as against the first and second respondents until security was provided. The Court accepted separate provision...

Jurisdiction
Australia
Judgment Date
22 March 1995
Procedural Posture
Notices of Motion for Security for Costs in a Proceeding Grounded on Alleged Breach of Contract, Estoppel and Misleading and Deceptive Conduct / Interlocutory Application
Outcome
Security for costs ordered in favour of the first and second respondents; proceedings stayed as against them until security is provided; applicant ordered to pay the costs of the motions.
Legal Topics
['security for Costs' "corporation's Ability to Pay Costs" 'discretion Under Corporations Law S 1335' 'quantum of Security' 'stay of Proceedings Pending Security']
['civil Procedure' 'corporations' 'costs'] ['security for Costs' "corporation's Ability to Pay Costs" 'discretion Under Corporations Law S 1335' 'quantum of Security' 'stay of Proceedings Pending Security']

Case Brief

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Procedural Posture

Notices of Motion for Security for Costs in a Proceeding Grounded on Alleged Breach of Contract, Estoppel and Misleading and Deceptive Conduct / Interlocutory Application

Legal Issues

  1. 1 ["Whether there was credible testimony giving reason to believe that BJC Media Pty Limited would be unable to pay the respondents' costs if successful in their defence under Corporations Law s 1335." 'Whether insolvency was required before Corporations Law s 1335 could apply.' "How the Court's discretion to order security for costs should be exercised in the circumstances." 'What amount of security for costs should be ordered for the first and second respondents.' 'Whether separate security for costs should be ordered for the second respondent where BJC alleged he was in effect an employee of Australis.']

Ratio Decidendi

The uncontradicted affidavit evidence showed that BJC had net assets of $10,000 and paid-up capital of $10,000, with no operating profit or loss for the relevant financial year, while the estimated party-party costs of Australis and Rose were substantially higher. BJC adduced no evidence of its current financial position, no evidence that security would stifle the claim, and no evidence that its lack of funds was caused by the respondents' conduct. The Court was therefore satisfied under Corporations Law s 1335 that security for costs should be ordered and the proceedings stayed as against the first and second respondents until security was provided. The Court accepted separate provision...

Court Disposition

Security for costs ordered in favour of the first and second respondents; proceedings stayed as against them until security is provided; applicant ordered to pay the costs of the motions.

Orders

  • ['Within 28 days, the applicant gives security for costs for the first respondent in the sum of $24,000, either by payment into a joint account in the names of the solicitors for the applicant and first respondent, with interest to abide further order, or by insurance or bank bond in a form settled by the...