Mark Foys Pty Ltd v TVSN (Pacfic) Limited [2000] FCA 1417

Mark Foys Pty Ltd v TVSN (Pacfic) Limited [2000] FCA 1417

O35 r6(2) of the Federal Court Rules did not apply to the appeal because an appeal is not further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief. Security was therefore confined to the respondent's costs of the appeal, assessed at $37,000, and no additional security was ordered for first instance costs.

Jurisdiction
Australia
Judgment Date
30 August 2000
Procedural Posture
Application for Security for Costs of an Appeal / Appeal Proceedings; Interlocutory Application for Security for Costs
Outcome
Security for the respondent's costs of the appeal was ordered in the amount of $37,000; additional security for costs of the first instance proceedings was declined.
Legal Topics
['security for Costs of Appeal' 'stay of Further Proceedings for Unpaid Costs' 'whether an Appeal Is Further Proceedings on the Same Cause of Action']
['civil Procedure' 'costs' 'appellate Procedure'] ['security for Costs of Appeal' 'stay of Further Proceedings for Unpaid Costs' 'whether an Appeal Is Further Proceedings on the Same Cause of Action']

Case Brief

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Procedural Posture

Application for Security for Costs of an Appeal / Appeal Proceedings; Interlocutory Application for Security for Costs

Legal Issues

  1. 1 ["Whether security for the respondent's costs of the appeal should be ordered and in what amount." 'Whether the Court could take into account a prima facie amount outstanding for costs of proceedings at first instance when ordering security for costs of an appeal.' 'Whether an appeal is a proceeding brought on the same or substantially the same cause of action or for the same or substantially the same relief within O35 r6(2) of the Federal Court Rules.']

Ratio Decidendi

O35 r6(2) of the Federal Court Rules did not apply to the appeal because an appeal is not further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief. Security was therefore confined to the respondent's costs of the appeal, assessed at $37,000, and no additional security was ordered for first instance costs.

Court Disposition

Security for the respondent's costs of the appeal was ordered in the amount of $37,000; additional security for costs of the first instance proceedings was declined.

Orders

  • ["Security for the Respondent's costs of the Appeal be assessed in the amount of $37,000.00 payable as to $18,500.00 by 15 September 2000 and the further $18,500.00 by 2 October 2000."]