Shaanxi Nutracare Australia Pty Ltd v Viplus Dairy Pty Ltd [2021] FCA 1015

Shaanxi Nutracare Australia Pty Ltd v Viplus Dairy Pty Ltd [2021] FCA 1015

In the particular circumstances, despite unexplained delay, the evidence of Nutracare’s financial inability to satisfy possible costs orders and the equivocal nature of evidence regarding those standing behind Nutracare justifies the exercise of discretion to order that Nutracare provide security for costs for Viplus, to ensure Viplus is not left unable to recover costs if successful.

Parties
Applicant: Shaanxi Nutracare Australia Pty Ltd; Respondent: Viplus Dairy Pty Ltd
Jurisdiction
Australia
Judgment Date
26 August 2021
Procedural Posture
Application for Security for Costs / Review of Registrar's Refusal; Hearing De Novo Before a Judge
Outcome
Security for costs ordered; proceeding stayed unless security provided; costs reserved.
Legal Topics
Security for Costs, Delay in Procedural Applications, Impecuniosity, Commercial Contracts
Practice & Procedure Commercial Law Corporations Law Security for Costs Delay in Procedural Applications Impecuniosity Commercial Contracts

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Parties

Shaanxi Nutracare Australia Pty Ltd

Applicant

Viplus Dairy Pty Ltd

Respondent

Procedural Posture

Application for Security for Costs / Review of Registrar's Refusal; Hearing De Novo Before a Judge

Legal Issues

  1. 1 Whether the discretion to order security for costs should be exercised in favour of the respondent
  2. 2 Effect of delay in bringing application for security for costs
  3. 3 Consequences of applicant’s impecuniosity and who stands behind the applicant

Ratio Decidendi

In the particular circumstances, despite unexplained delay, the evidence of Nutracare’s financial inability to satisfy possible costs orders and the equivocal nature of evidence regarding those standing behind Nutracare justifies the exercise of discretion to order that Nutracare provide security for costs for Viplus, to ensure Viplus is not left unable to recover costs if successful.

Court Disposition

Security for costs ordered; proceeding stayed unless security provided; costs reserved.

Orders

  • Within 7 days of date of order, the applicant must provide the respondent with security for its costs in the sum of $225,000.
  • Security must be provided by payment into court or irrevocable bank guarantee from an Australian trading bank.