Cosdean Investments Pty Ltd v Football Federation Australia Limited (No 5) [2007] FCA 1792

Cosdean Investments Pty Ltd v Football Federation Australia Limited (No 5) [2007] FCA 1792

The motion was refused because the applicant gave no satisfactory explanation for the lengthy delay in appealing, did not explain non-participation in the 17 May 2007 hearing, did not show that Deumer Asia's letter waived the debt or amounted to a significant change in circumstances, did not identify any substantive error or real prospect of success on appeal from the further security for costs orders, and accepted that it could not pay the further security or meet the respondents' costs if unsuccessful. In those circumstances the dismissal orders should not be discharged, although time to pay the further security was extended to 30 November 2007 out of caution.

Jurisdiction
Australia
Judgment Date
23 November 2007
Procedural Posture
Practice and Procedure; Security for Costs / Applicant's Notice of Motion to Set Aside Orders Dismissing the Proceeding If Security for Costs Was Not Paid and to Extend Time to Appeal From Further Security for Costs Orders
Outcome
The applicant's notice of motion was refused; the applicant was ordered to pay the respondents' costs; time to pay the further security for costs was extended to 30 November 2007, failing which the proceeding would be dismissed with costs.
Legal Topics
['security for Costs' 'setting Aside Interlocutory Orders' 'extension of Time to Appeal' 'permanent Stay' 'dismissal for Non Payment of Security for Costs' 'costs']
['civil Procedure'] ['security for Costs' 'setting Aside Interlocutory Orders' 'extension of Time to Appeal' 'permanent Stay' 'dismissal for Non Payment of Security for Costs' 'costs']

Case Brief

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Procedural Posture

Practice and Procedure; Security for Costs / Applicant's Notice of Motion to Set Aside Orders Dismissing the Proceeding If Security for Costs Was Not Paid and to Extend Time to Appeal From Further Security for Costs Orders

Legal Issues

  1. 1 ['Whether the orders made on 17 May 2007 dismissing the proceeding if further security for costs was not paid should be set aside.' 'Whether time should be extended for the applicant to appeal from the further security for costs orders made on 14 February 2007 and the stay order made on 19 February 2007.' "Whether Deumer Asia's letter of 15 July 2007 showed a substantial change in circumstances relevant to the security for costs orders." 'Whether the applicant had shown any arguable error or prospect of success on appeal from the further security for costs orders.']

Ratio Decidendi

The motion was refused because the applicant gave no satisfactory explanation for the lengthy delay in appealing, did not explain non-participation in the 17 May 2007 hearing, did not show that Deumer Asia's letter waived the debt or amounted to a significant change in circumstances, did not identify any substantive error or real prospect of success on appeal from the further security for costs orders, and accepted that it could not pay the further security or meet the respondents' costs if unsuccessful. In those circumstances the dismissal orders should not be discharged, although time to pay the further security was extended to 30 November 2007 out of caution.

Court Disposition

The applicant's notice of motion was refused; the applicant was ordered to pay the respondents' costs; time to pay the further security for costs was extended to 30 November 2007, failing which the proceeding would be dismissed with costs.

Orders

  • ['The orders sought by the applicant in its notice of motion of 23 July 2007 are refused.' "The applicant pay to the respondents their costs of and incidental to the applicant's notice of motion." 'The time by which the applicant do pay the further sums for security for costs ordered to be paid on 14 February 2007,...