Chester & Fein Property Developments Pty Ltd v Candam Investments Pty Ltd & Anor [1985] FCA 424

Chester & Fein Property Developments Pty Ltd v Candam Investments Pty Ltd & Anor [1985] FCA 424

Given the uncertainty regarding the realisable value of the applicant's right of indemnity, the capacity or willingness of beneficiaries to contribute, and the availability of trust profits or assets to meet a costs order, the proper exercise of discretion is to order that the applicant provide security for costs.

Parties
Applicant: Chester & Fein Property Developments Pty. Ltd.; Respondent: Candam Investments Pty. Ltd.; Respondent: Joseph Morris Melnik
Jurisdiction
Australia
Judgment Date
30 August 1985
Procedural Posture
Motion for Security for Costs / Heard and Determined at First Instance
Outcome
Order for security for costs granted
Legal Topics
Security for Costs, Trusts, Companies
Civil Procedure Security for Costs Trusts Companies

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Parties

Chester & Fein Property Developments Pty. Ltd.

Applicant

Candam Investments Pty. Ltd.

Respondent

Joseph Morris Melnik

Respondent

Procedural Posture

Motion for Security for Costs / Heard and Determined at First Instance

Legal Issues

  1. 1 Whether the applicant should be ordered to provide security for the respondents' costs
  2. 2 Whether the applicant, as trustee and beneficiary under a unit trust, would be unable to pay costs if ordered

Ratio Decidendi

Given the uncertainty regarding the realisable value of the applicant's right of indemnity, the capacity or willingness of beneficiaries to contribute, and the availability of trust profits or assets to meet a costs order, the proper exercise of discretion is to order that the applicant provide security for costs.

Court Disposition

Order for security for costs granted

Orders

  • The applicant shall, within 28 days, give security for payment to the respondents or either of them of costs that may be awarded against it in the proceeding in the sum of $5,000.
  • Security may be given by payment into court or by bond in a manner and form as the court approves.