Yates Property Corporation Pty Ltd v Boland, John (as representative partner of Abbott Tout Russell Kennedy, Solicitors) & Ors [1998] FCA 8

Yates Property Corporation Pty Ltd v Boland, John (as representative partner of Abbott Tout Russell Kennedy, Solicitors) & Ors [1998] FCA 8

Because the factual basis for the earlier $100,000 per respondent security order had changed, the matter had to be reconsidered. On reconsideration, the appeal prospects were slight, no significant point of law or issue desirable for a Full Court was shown, the appellant's compensation contentions had already been...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 January 1998
Procedural Posture
Appeal From a Judgment of Branson J; Motion Concerning Security for Costs / Reconsideration of Security for Costs After Liberty to Apply Was Reserved
Outcome
Orders 1, 2 and 3 made on 7 October 1997 were terminated, and the appellant was ordered to provide reduced security for costs of $40,000 for each respondent by 30 January 1998, with liberty to the respondents to apply for dismissal if security was not provided.
Legal Topics
['security for Costs' 'impecunious Corporation' 'costs of Appeal' 'prospects of Success on Appeal' "solicitors' and Counsel's Alleged Negligence" 'compensation for Compulsory Acquisition' 'special Value and Head Start']
['civil Procedure' 'costs' 'appeals' 'corporations' 'professional Negligence'] ['security for Costs' 'impecunious Corporation' 'costs of Appeal' 'prospects of Success on Appeal' "solicitors' and Counsel's Alleged Negligence" 'compensation for Compulsory Acquisition' 'special Value and Head Start']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Appeal From a Judgment of Branson J; Motion Concerning Security for Costs / Reconsideration of Security for Costs After Liberty to Apply Was Reserved

Legal Issues

  1. 1 ['Whether the security for costs orders made on 7 October 1997 should be terminated or varied because the circumstances on which they were based had altered.' "Whether an impecunious corporate appellant should be required to provide security for the respondents' costs of the appeal." 'Whether the appeal had sufficient prospects or raised a significant issue making it undesirable to require security.' 'What amount of security should be ordered.']

Ratio Decidendi

Because the factual basis for the earlier $100,000 per respondent security order had changed, the matter had to be reconsidered. On reconsideration, the appeal prospects were slight, no significant point of law or issue desirable for a Full Court was shown, the appellant's compensation contentions had already been rejected in several proceedings, and there was no prima facie case that the appellant's impecuniosity was caused by the respondents. In those circumstances the respondents should not be put to the expense of the appeal without security, but the amount was reduced to $40,000 for each respondent having regard to the appellant's impecuniosity.

Court Disposition

Orders 1, 2 and 3 made on 7 October 1997 were terminated, and the appellant was ordered to provide reduced security for costs of $40,000 for each respondent by 30 January 1998, with liberty to the respondents to apply for dismissal if security was not provided.

Orders

  • ['Orders 1, 2 and 3 made on 7 October 1997 be terminated.' 'The appellant provide security for costs in the sum of $40,000 in respect of each respondent by way of payment into Court or by way of bank guarantee in a form approved by the Registrar and that such security be provided on or before 30 January 1998.'...