Capital Webworks Pty Ltd v Adultshop.Com Limited [2008] FCA 423

Capital Webworks Pty Ltd v Adultshop.Com Limited [2008] FCA 423

Where an applicant fails to comply with an order for security for costs and provides no evidence of capacity or intention to pay, but has a substantial investment in the proceedings and is at an advanced stage, the Court may, in its discretion, defer dismissal to allow a final opportunity for compliance; the period for compliance should balance the prejudice to the respondent with the applicant’s investment and readiness for trial. Dismissal will be without prejudice to future proceedings if substantive issues have not been resolved.

Jurisdiction
Australia
Judgment Date
31 March 2008
Procedural Posture
Application for Dismissal for Non Compliance With Security for Costs Order / Interlocutory; Ruling on Dismissal Application
Outcome
Deferred conditional dismissal: proceedings to be dismissed if security for costs not paid within 3 months, without prejudice to future proceedings. Costs orders for respondents.
Legal Topics
['security for Costs' 'practice and Procedure' 'dismissal for Non Compliance' 'costs Orders']
['civil Procedure'] ['security for Costs' 'practice and Procedure' 'dismissal for Non Compliance' 'costs Orders']

Case Brief

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Procedural Posture

Application for Dismissal for Non Compliance With Security for Costs Order / Interlocutory; Ruling on Dismissal Application

Legal Issues

  1. 1 ['Whether proceedings should be dismissed for failure to comply with a security for costs order' 'Whether dismissal should be with or without prejudice to the institution of further proceedings' 'Whether indemnity costs should be awarded']

Ratio Decidendi

Where an applicant fails to comply with an order for security for costs and provides no evidence of capacity or intention to pay, but has a substantial investment in the proceedings and is at an advanced stage, the Court may, in its discretion, defer dismissal to allow a final opportunity for compliance; the period for compliance should balance the prejudice to the respondent with the applicant’s investment and readiness for trial. Dismissal will be without prejudice to future proceedings if substantive issues have not been resolved.

Court Disposition

Deferred conditional dismissal: proceedings to be dismissed if security for costs not paid within 3 months, without prejudice to future proceedings. Costs orders for respondents.

Orders

  • ['The applicant is to pay into Court the further security due to be paid on 20 February 2008 ($68,000) on or before 3 months from the date of these orders.' "If the further security is not paid on or before the due date, the application is to be dismissed without prejudice to the applicant's entitlement, if any, to...