Horizons (Asia) Pty Ltd v Enagic Co Ltd (Security for Costs) [2022] FCA 365

Horizons (Asia) Pty Ltd v Enagic Co Ltd (Security for Costs) [2022] FCA 365

There is a real risk that the applicant will not be able to pay a costs order if made, particularly given its failure to provide financial information, evidence of minimal assets, outstanding legal fees, a pending winding up application, presumed insolvency, and participation in other disputes. Security for costs is therefore warranted in the amount of $60,000.

Parties
Appellant: Horizons (Asia) Pty Ltd; Respondent: Enagic Co Ltd
Jurisdiction
Australia
Judgment Date
06 April 2022
Procedural Posture
Application for Security for Costs (pending Leave to Appeal and Appeal) / Interlocutory Application
Outcome
Security for costs ordered against the applicant, with consequences for non-compliance; applicant to pay the respondent’s costs of the application.
Legal Topics
Security for Costs, Appeals, Trade Marks
Practice and Procedure Intellectual Property Security for Costs Appeals Trade Marks

Case Brief

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Parties

Horizons (Asia) Pty Ltd

Appellant

Enagic Co Ltd

Respondent

Procedural Posture

Application for Security for Costs (pending Leave to Appeal and Appeal) / Interlocutory Application

Legal Issues

  1. 1 Whether security for costs should be ordered in respect of an application for leave to appeal and appeal
  2. 2 Appropriate quantum and terms of security for costs

Ratio Decidendi

There is a real risk that the applicant will not be able to pay a costs order if made, particularly given its failure to provide financial information, evidence of minimal assets, outstanding legal fees, a pending winding up application, presumed insolvency, and participation in other disputes. Security for costs is therefore warranted in the amount of $60,000.

Court Disposition

Security for costs ordered against the applicant, with consequences for non-compliance; applicant to pay the respondent’s costs of the application.

Orders

  • The applicant provide security for the respondent's costs of the application for leave to appeal and any appeal by payment into court of the sum of $60,000 on or before 5.00pm AEST on Tuesday, 12 April 2022, failing which: (a) the proceeding be ipso facto stayed; (b) the respondent file an application for dismissal...
  • The applicant pay the respondent's costs of the application for security for costs.