Kelbor Pty Ltd v Ozzz Lo Pty Ltd & Ors [1995] FCA 791

Kelbor Pty Ltd v Ozzz Lo Pty Ltd & Ors [1995] FCA 791

The respondents failed to satisfy the s.1335 threshold because the applicant's current financial documents, profitable and improving trading, surplus of current assets over current liabilities, consolidated business position, and evidence of retail outlets and future trading did not provide credible testimony giving reason to believe the applicant would be unable to pay an adverse costs order. The asserted risks and adverse inferences were unsupported or insufficient.

Jurisdiction
Australia
Judgment Date
06 October 1995
Procedural Posture
Application by Respondents Under S.1335 of the Corporations Law for Security for Costs / Notice of Motion Filed 21 September 1995 Heard and Dismissed
Outcome
Notice of motion dismissed; respondents ordered to pay the applicant's costs of and incidental to the notice of motion.
Legal Topics
['security for Costs' 'section 1335 of the Corporations Law' 'credible Testimony of Inability to Pay Costs' 'financial Position of Corporate Applicant']
['practice and Procedure' 'corporations'] ['security for Costs' 'section 1335 of the Corporations Law' 'credible Testimony of Inability to Pay Costs' 'financial Position of Corporate Applicant']

Case Brief

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Procedural Posture

Application by Respondents Under S.1335 of the Corporations Law for Security for Costs / Notice of Motion Filed 21 September 1995 Heard and Dismissed

Legal Issues

  1. 1 ["Whether there was credible testimony giving reason to believe that the applicant corporation would be unable to pay the respondents' costs if the respondents were successful in their defence." 'Whether the respondents satisfied the threshold test for security for costs under s.1335 of the Corporations Law.']

Ratio Decidendi

The respondents failed to satisfy the s.1335 threshold because the applicant's current financial documents, profitable and improving trading, surplus of current assets over current liabilities, consolidated business position, and evidence of retail outlets and future trading did not provide credible testimony giving reason to believe the applicant would be unable to pay an adverse costs order. The asserted risks and adverse inferences were unsupported or insufficient.

Court Disposition

Notice of motion dismissed; respondents ordered to pay the applicant's costs of and incidental to the notice of motion.

Orders

  • ['The notice of motion filed 21 September 1995 be dismissed.' 'The respondents pay the applicant, Kelbor Pty Ltd, costs of and incidental to the notice of motion to be taxed if not agreed.' 'The affidavit of Thomas Hope filed 5 October 1995 and the affidavit of Robert Arthur Bool filed 5 October 1995 be sealed up...