Rosina Florence Upton & anor v TVW Enterprises Ltd & anor [1984] FCA 439

Rosina Florence Upton & anor v TVW Enterprises Ltd & anor [1984] FCA 439

Order 28 Rule 3(1)(b) is not engaged unless it is established that the proceedings are instituted for the benefit of someone other than the applicants. The forbearance by creditors does not amount to a formal or informal assignment or arrangement such that the applicants are not suing for their own benefit. There is no sufficient evidence that the applicants are suing for the benefit of their creditors rather than for themselves; thus, no order for security for costs is warranted on this ground.

Parties
Applicant: Rosina Florence Upton; Applicant: Leslie Charles Upton; First Respondent: TVW Enterprises Limited; Second Respondent: Hodd Wilkins Pty Ltd
Jurisdiction
Australia
Judgment Date
12 December 1984
Procedural Posture
Motion for Security for Costs / Interlocutory Application
Outcome
Motions for security for costs dismissed
Legal Topics
Security for Costs
Practice and Procedure Security for Costs

Case Brief

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Parties

Rosina Florence Upton

Applicant

Leslie Charles Upton

Applicant

TVW Enterprises Limited

First Respondent

Hodd Wilkins Pty Ltd

Second Respondent

Procedural Posture

Motion for Security for Costs / Interlocutory Application

Legal Issues

  1. 1 Whether the applicants are suing for their own benefit or for the benefit of some other person within Order 28 Rule 3(1)(b) of the Federal Court Rules, justifying an order for security for costs

Ratio Decidendi

Order 28 Rule 3(1)(b) is not engaged unless it is established that the proceedings are instituted for the benefit of someone other than the applicants. The forbearance by creditors does not amount to a formal or informal assignment or arrangement such that the applicants are not suing for their own benefit. There is no sufficient evidence that the applicants are suing for the benefit of their creditors rather than for themselves; thus, no order for security for costs is warranted on this ground.

Court Disposition

Motions for security for costs dismissed

Orders

  • Paragraph 2 of the first respondent's notice of motion filed on 23 November 1984 is dismissed.
  • Paragraph 2 of the second respondent's notice of motion filed on 30 November 1984 is dismissed.