Fiorentino & Anor v Mohamed [2005] NSWSC 1177

Fiorentino & Anor v Mohamed [2005] NSWSC 1177

Security for costs was ordered because Mohamed acquired a small debt by gift solely to give himself colour of standing, was proceeding not for his own benefit but for the benefit of one or more examinees seeking to halt the liquidators' examinations, and there was reason to believe he could not pay costs of $27,570 if ordered to do so. The court also found real doubts as to bona fides, assessed the case as weak, and declined to find undue stultification because Mohamed was acting in the interests of others from whom financial resources could be assumed to be available.

Jurisdiction
Australia
Judgment Date
21 November 2005
Procedural Posture
Application for Security for Costs in Corporations Proceedings Concerning Part 5.9 Examinations / Interlocutory Application Heard on 14 November 2005
Outcome
Security for costs ordered.
Legal Topics
['security for Costs' 'public Examinations' 'liquidators' 'standing as Creditor' 'stay of Interlocutory Process']
['procedure' 'corporations'] ['security for Costs' 'public Examinations' 'liquidators' 'standing as Creditor' 'stay of Interlocutory Process']

Case Brief

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Procedural Posture

Application for Security for Costs in Corporations Proceedings Concerning Part 5.9 Examinations / Interlocutory Application Heard on 14 November 2005

Legal Issues

  1. 1 ['Whether Nasser Mohamed was suing for his own benefit or for the benefit of other persons within rule 42.21(e) of the Uniform Civil Procedure Rules 2005.' "Whether there was reason to believe that Nasser Mohamed would be unable to pay the liquidators' costs if ordered to do so." 'Whether the claim was bona fide and had reasonable prospects of success.' "Whether an order for security for costs would unduly stultify Nasser Mohamed's application."]

Ratio Decidendi

Security for costs was ordered because Mohamed acquired a small debt by gift solely to give himself colour of standing, was proceeding not for his own benefit but for the benefit of one or more examinees seeking to halt the liquidators' examinations, and there was reason to believe he could not pay costs of $27,570 if ordered to do so. The court also found real doubts as to bona fides, assessed the case as weak, and declined to find undue stultification because Mohamed was acting in the interests of others from whom financial resources could be assumed to be available.

Court Disposition

Security for costs ordered.

Orders

  • ['Nasser Mohamed, the applicant under the interlocutory process filed on 28 October 2005, do give security in the sum of $27,570 for the costs of the respondents to that interlocutory process.' 'Such security be provided by payment of the sum of $27,570 into court to abide the making of orders as to costs upon or...