Four Seasons Design, Inc v Ly Thai Corporation Pty Ltd [2009] FCA 1430

Four Seasons Design, Inc v Ly Thai Corporation Pty Ltd [2009] FCA 1430

Security for costs was warranted because Four Seasons Design, Inc was ordinarily resident outside Australia, had no demonstrated assets or business presence in Australia, had filed no material showing assets or capacity to meet an adverse costs order, and the asserted ability to enforce in Washington did not adequately answer the real risk that the first respondent would not recover taxed costs. No countervailing circumstance, including delay, stultification, impecuniosity caused by the impugned conduct, or prospects of success, displaced that conclusion. Because the respondents' evidence on quantum lacked detail and scale-based breakdown, the appropriate security was fixed at $20,000...

Jurisdiction
Australia
Judgment Date
02 December 2009
Procedural Posture
Security for Costs Motion / Application by the First Respondent for Security for Costs Before Trial
Outcome
Application for security for costs granted in favour of the first respondent, with security fixed at $20,000.
Legal Topics
['security for Costs' 'foreign Corporate Applicant' 'ordinary Residence Outside Australia' 'enforcement of Costs Orders' 'trade Marks' 'copyright' 'misleading and Deceptive Conduct' 'passing Off' 'licence Agreements']
['civil Procedure' 'intellectual Property' 'consumer Law' 'contract'] ['security for Costs' 'foreign Corporate Applicant' 'ordinary Residence Outside Australia' 'enforcement of Costs Orders' 'trade Marks' 'copyright' 'misleading and Deceptive Conduct' 'passing Off' 'licence Agreements']

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Procedural Posture

Security for Costs Motion / Application by the First Respondent for Security for Costs Before Trial

Legal Issues

  1. 1 ["Whether the applicant should be ordered to provide security for the first respondent's costs." 'Whether s 1335 of the Corporations Act prevented reliance on s 56 of the Federal Court of Australia Act 1976 (Cth) and Order 28 of the Federal Court Rules 1979 (Cth).' "Whether the applicant's residence outside Australia and lack of assets or presence in Australia created a real risk that the first respondent would not recover costs if successful." 'What amount of security should be ordered.']

Ratio Decidendi

Security for costs was warranted because Four Seasons Design, Inc was ordinarily resident outside Australia, had no demonstrated assets or business presence in Australia, had filed no material showing assets or capacity to meet an adverse costs order, and the asserted ability to enforce in Washington did not adequately answer the real risk that the first respondent would not recover taxed costs. No countervailing circumstance, including delay, stultification, impecuniosity caused by the impugned conduct, or prospects of success, displaced that conclusion. Because the respondents' evidence on quantum lacked detail and scale-based breakdown, the appropriate security was fixed at $20,000...

Court Disposition

Application for security for costs granted in favour of the first respondent, with security fixed at $20,000.

Orders

  • ['Within 14 days of the date of this order, the applicant provide security in the amount of $20,000 in a manner satisfactory to the first respondent and, failing agreement by the first respondent, then to the satisfaction of the Victoria District Registrar of the Federal Court of Australia.' "The security for costs...