Dileum Pty Ltd v Greenall Whitley Ltd [1987] FCA 263

Dileum Pty Ltd v Greenall Whitley Ltd [1987] FCA 263

Due to the lack of evidence regarding the terms of the trust deed, beneficiaries' financial position, and actual enforceability of indemnity rights, and the inherent difficulty in enforcing a costs order against a trustee company, security for costs should be ordered. The applicant must pay $7,500 into court as security within 28 days, failing which the proceedings will be stayed.

Parties
Applicant: Dileum Pty. Limited; Respondent: Greenall Whitley Limited
Jurisdiction
Australia
Judgment Date
29 May 1987
Procedural Posture
Application for Delivery of Goods or Damages and Security for Costs / Interlocutory Order for Security for Costs
Outcome
Security for costs ordered; respondent's motion adjourned generally; applicant to pay respondent's costs of the motion.
Legal Topics
Security for Costs, Trustee Company Liability, Trade Practices, Breach of Contract
Civil Procedure Security for Costs Trustee Company Liability Trade Practices Breach of Contract

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Parties

Dileum Pty. Limited

Applicant

Greenall Whitley Limited

Respondent

Procedural Posture

Application for Delivery of Goods or Damages and Security for Costs / Interlocutory Order for Security for Costs

Legal Issues

  1. 1 Whether security for costs should be ordered against a trustee company applicant
  2. 2 Adequacy and enforceability of indemnity rights under trust structure for costs liability
  3. 3 Amount of security for costs appropriate

Ratio Decidendi

Due to the lack of evidence regarding the terms of the trust deed, beneficiaries' financial position, and actual enforceability of indemnity rights, and the inherent difficulty in enforcing a costs order against a trustee company, security for costs should be ordered. The applicant must pay $7,500 into court as security within 28 days, failing which the proceedings will be stayed.

Court Disposition

Security for costs ordered; respondent's motion adjourned generally; applicant to pay respondent's costs of the motion.

Orders

  • Applicant to give security of $7,500 for respondent's costs within 28 days.
  • Security to be paid into Court.