Austeur Pty Ltd & Ors v Stoat Pty Ltd [1995] FCA 99

Austeur Pty Ltd & Ors v Stoat Pty Ltd [1995] FCA 99

Although the first applicant's affidavit admission was sufficient credible evidence that it could not pay costs, the Court refused to order security because there was material suggesting the first applicant's impecuniosity may have resulted from the matters complained of, and requiring security of $42,500 or anything like it would likely stultify the first applicant's claims and probably the other applicants' claims, while the respondent could continue its cross claim without similar disability.

Jurisdiction
Australia
Judgment Date
10 March 1995
Procedural Posture
Application Under the Trade Practices Act 1974 Seeking Injunctive Relief, Damages, Repayment of Purchase Moneys and Setting Aside of Security Documents; Interlocutory Application for Security for Costs Under S1335 of the Corporations Law / Application for Security for Costs
Outcome
Application for security for costs dismissed; costs reserved.
Legal Topics
['security for Costs' 'corporate Impecuniosity' 'discretion to Order Security' 'stultification of Proceedings']
['corporations' 'civil Procedure' 'trade Practices'] ['security for Costs' 'corporate Impecuniosity' 'discretion to Order Security' 'stultification of Proceedings']

Case Brief

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Procedural Posture

Application Under the Trade Practices Act 1974 Seeking Injunctive Relief, Damages, Repayment of Purchase Moneys and Setting Aside of Security Documents; Interlocutory Application for Security for Costs Under S1335 of the Corporations Law / Application for Security for Costs

Legal Issues

  1. 1 ["Whether there was credible evidence that the first applicant corporation would be unable to pay the respondent's costs." 'Whether the Court should exercise its discretion under s1335 of the Corporations Law to order the first applicant to provide security for costs.' "Whether the first applicant's impecuniosity may be said to result from the matters complained of against the respondent." "Whether an order for security for costs would stultify the applicants' prosecution of their claims."]

Ratio Decidendi

Although the first applicant's affidavit admission was sufficient credible evidence that it could not pay costs, the Court refused to order security because there was material suggesting the first applicant's impecuniosity may have resulted from the matters complained of, and requiring security of $42,500 or anything like it would likely stultify the first applicant's claims and probably the other applicants' claims, while the respondent could continue its cross claim without similar disability.

Court Disposition

Application for security for costs dismissed; costs reserved.

Orders

  • ['The application for security for costs is dismissed.' 'Costs of the application are reserved.']