Flujo Holdings Pty Ltd v Merisant Company [2019] FCA 594

Flujo Holdings Pty Ltd v Merisant Company [2019] FCA 594

In view of the applicant’s lack of evidence of assets to meet an adverse costs order and its prior failure to pay a costs order made in New Zealand proceedings, security for costs should be ordered in favour of the respondents for the period up to and including mediation, fixed at $150,000. However, the Court does not have jurisdiction under s 56 to order that this security cover the New Zealand costs order, nor would it be appropriate to do so.

Parties
Applicant: Flujo Holdings Pty Ltd; First Respondent: Merisant Company; Second Respondent: Merisant Australia Pty Limited; Third Respondent: Sugar Australia Pty Ltd; Fourth Respondent: Flujo Sanguineo Pty Ltd
Jurisdiction
Australia
Judgment Date
30 April 2019
Procedural Posture
Interlocutory Application / Determination of Application for Security for Costs
Outcome
Security for costs ordered for the period up to mediation, with detailed procedural orders for the further conduct of the proceeding. No order for security in respect of New Zealand costs order.
Legal Topics
Security for Costs, Trade Marks, Australian Consumer Law
Practice and Procedure Intellectual Property Security for Costs Trade Marks Australian Consumer Law

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Parties

Flujo Holdings Pty Ltd

Applicant

Merisant Company

First Respondent

Merisant Australia Pty Limited

Second Respondent

Sugar Australia Pty Ltd

Third Respondent

Flujo Sanguineo Pty Ltd

Fourth Respondent

Procedural Posture

Interlocutory Application / Determination of Application for Security for Costs

Legal Issues

  1. 1 Whether the applicant should be ordered to provide security for costs
  2. 2 Quantum of security for costs to be ordered
  3. 3 Whether the Court has power to order security for costs awarded in separate New Zealand proceedings

Ratio Decidendi

In view of the applicant’s lack of evidence of assets to meet an adverse costs order and its prior failure to pay a costs order made in New Zealand proceedings, security for costs should be ordered in favour of the respondents for the period up to and including mediation, fixed at $150,000. However, the Court does not have jurisdiction under s 56 to order that this security cover the New Zealand costs order, nor would it be appropriate to do so.

Court Disposition

Security for costs ordered for the period up to mediation, with detailed procedural orders for the further conduct of the proceeding. No order for security in respect of New Zealand costs order.

Orders

  • Applicant to give security for First, Second and Third Respondents' costs by paying $150,000 into court or providing an irrevocable bank guarantee.
  • Proceeding to be stayed if applicant does not provide security by 13 May 2019.