Milfull v Terranora Lakes Country Club Limited (In Liquidation) [2004] FCA 1637

Milfull v Terranora Lakes Country Club Limited (In Liquidation) [2004] FCA 1637

The application for security for costs was dismissed because the second and fifth respondents could have brought it much earlier, the applicant and group members had expended substantial sums without notice that security would be sought, and the explanation for the lengthy delay was insufficient. In those circumstances, and having regard to the effect on the applicant and group members, an order for security for costs was not appropriate.

Jurisdiction
Australia
Judgment Date
14 December 2004
Procedural Posture
Representative Proceeding; Interlocutory Application for Security for Costs / Application by the Second and Fifth Respondents for Security for Costs Heard on 8 December 2004; Judgment and Orders on 14 December 2004
Outcome
Application dismissed with costs.
Legal Topics
['security for Costs in Representative Proceedings' 'federal Court of Australia Act 1976 (cth) Ss 43(1 A), 56(1) and 33 Zg(c)(v)' 'delay in Applying for Security for Costs' 'bank Guarantee as Security' 'costs Immunity of Group Members']
['civil Procedure' 'representative Proceedings' 'security for Costs' 'costs'] ['security for Costs in Representative Proceedings' 'federal Court of Australia Act 1976 (cth) Ss 43(1 A), 56(1) and 33 Zg(c)(v)' 'delay in Applying for Security for Costs' 'bank Guarantee as Security' 'costs Immunity of Group Members']

Case Brief

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Procedural Posture

Representative Proceeding; Interlocutory Application for Security for Costs / Application by the Second and Fifth Respondents for Security for Costs Heard on 8 December 2004; Judgment and Orders on 14 December 2004

Legal Issues

  1. 1 ["Whether the applicant should provide security for the second and fifth respondents' costs in the amount of $380,000 or another amount by way of the bank guarantee referred to in Dowsett J's orders of 3 March 2004." 'Whether ordering security would be contrary to s 43(1A) of the Federal Court of Australia Act 1976 (Cth) because the proceeding was brought for the benefit of group members.' 'Whether the delay in bringing the application made it inappropriate to order security for costs.' 'Whether an order for security would stifle the litigation.']

Ratio Decidendi

The application for security for costs was dismissed because the second and fifth respondents could have brought it much earlier, the applicant and group members had expended substantial sums without notice that security would be sought, and the explanation for the lengthy delay was insufficient. In those circumstances, and having regard to the effect on the applicant and group members, an order for security for costs was not appropriate.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The second and fifth respondents pay the applicant's costs of the application."]