Imperial China Tours Pty Ltd v Petrovski [2017] FCA 1005

Imperial China Tours Pty Ltd v Petrovski [2017] FCA 1005

On the evidence before the court, there appeared credible testimony supporting a reason to believe Imperial China Tours Pty Ltd would be unable to pay the defendant's costs if he is successful. Ms Sward's affidavit established lack of real property and limited share capital, with refusal to provide financial...

Source-derived case information.

Parties
Plaintiff: Imperial China Tours Pty Ltd; Defendant: Tony Petrovski
Jurisdiction
Australia
Judgment Date
10 August 2017
Procedural Posture
Application / Security for Costs Order
Outcome
Security for costs ordered against plaintiff; proceedings stayed until provision of security; costs application granted.
Legal Topics
Security for Costs, Impecuniosity, Corporations as Plaintiffs
Practice and Procedure Corporations Law Civil Procedure Security for Costs Impecuniosity Corporations as Plaintiffs

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Parties

Imperial China Tours Pty Ltd

Plaintiff

Tony Petrovski

Defendant

Procedural Posture

Application / Security for Costs Order

Legal Issues

  1. 1 Whether there is credible testimony that Imperial China Tours Pty Ltd will be unable to pay the defendant's costs if he is successful in his defence under s 1335(1) Corporations Act 2001 (Cth) and s 56 Federal Court of Australia Act 1976 (Cth)
  2. 2 Whether security for costs should be ordered against a corporate plaintiff
  3. 3 Factors relevant to the exercise of discretion for granting security for costs

Ratio Decidendi

On the evidence before the court, there appeared credible testimony supporting a reason to believe Imperial China Tours Pty Ltd would be unable to pay the defendant's costs if he is successful. Ms Sward's affidavit established lack of real property and limited share capital, with refusal to provide financial information. Plaintiff did not rebut by producing sufficient financial records. Weighing discretion factors, including bona fides and potential for the litigation to be stifled, the court ordered security for costs of $55,000.

Court Disposition

Security for costs ordered against plaintiff; proceedings stayed until provision of security; costs application granted.

Orders

  • Plaintiff provide security for defendant's costs in the sum of $55,000 by unconditional bank guarantee or to District Registrar's satisfaction.
  • Proceedings by plaintiff stayed as against defendant until provision of security.