FEDERAL COURT OF AUSTRALIA
A1 for Maintenance Pty Ltd v Lehal Pty Ltd [2018] FCA 1476
File number: WAD 162 of 2017 Judge: COLVIN J Date of judgment: 2 October 2018 Catchwords: PRACTICE AND PROCEDURE - application for security for costs under s 1335 of the Corporations Act 2001 (Cth) - whether there is reason to believe the applicant will be unable to pay respondents' costs if it is unsuccessful in its claim - whether the Court should exercise its discretion to make an order for security for costs - whether adequate evidence to support an assessment of the quantum of security sought - order for security for costs made Legislation: Corporations Act 2001 (Cth) s 1335
Competition and Consumer (Industry Codes - Franchising) Regulation 2014 (Cth)
Cases cited: Antonias Pty Ltd v Matthew Lepouris Pty Ltd [2004] NSWSC 654
Bell Wholesale Company Pty Ltd v Gates Export Corporation (No 2) [1984] FCA 34; (1984) 2 FCR 1
Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd [1987] FCA 102; (1987) 16 FCR 497
Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 1334
Deltrend Pty Ltd v AST Australia Pty Ltd (1995) 16 ACSR 762
FFE Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 156 FLR 116
IceTV Pty Ltd v Ross [2007] NSWSC 1232
Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377
Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1
Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103
PS Chellaram & Co Ltd v China Ocean Shipping Company [1991] HCA 36
Sugarloaf Hill Nominees Pty Ltd v Rewards Projects Ltd [2011] WASC 19
Date of hearing: 26 September 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: Mr M Pirrie Solicitor for the Applicant: Frenkel Partners Solicitor for the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents: Mr A Prime Counsel for the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents: MDS Legal
Table of Corrections 25 October 2018 At [52] the date '1 January 2017' has been amended to correctly state '1 January 2018'. ORDERS
WAD 162 of 2017 BETWEEN: A1 FOR MAINTENANCE PTY LTD (ACN 113 002 109)
Applicant
AND: LEHAL PTY LTD (ACN 601 285 465)
First Respondent
RAVI INDER SINGH
Second Respondent
MAJINDER SINGH (and others named in the Schedule)
Third Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
2 OCTOBER 2018
THE COURT ORDERS THAT:
1.The applicant do provide security for the first to seventh respondents' costs in the amount of $30,000 prior to 16 October 2018.
2.In default of compliance with order 1, the proceedings be stayed until further order.
3.There be liberty to the first to seventh respondents to apply for further security after the allocation of final hearing dates.
4.The applicant do pay the…
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- Case
- [2018] FCA 1476
- Decision Date
CaseChat Overview and Summary
The court found that there was a reason to believe that the applicant would be unable to pay the respondents' costs if it was unsuccessful in its claim. The court noted that the applicant had not provided any evidence of its financial position, and that the respondents had provided evidence of their own financial position which demonstrated that they would be unable to bear the costs of the proceedings if they were not successful. The court found that the applicant had not provided adequate evidence to support an assessment of the quantum of security sought, but noted that the respondents had not opposed the amount of security sought. The court exercised its discretion to make an order for security for costs in the amount of $30,000, and ordered that the applicant provide security for the first to seventh respondents' costs prior to 16 October 2018. The court also ordered that in default of compliance with this order, the proceedings be stayed until further order, and that the applicant pay the respondents' costs of the application for security for costs.
The final orders made by the court were that the applicant provide security for the first to seventh respondents' costs in the amount of $30,000 prior to 16 October 2018. In default of compliance with this order, the proceedings were to be stayed until further order. The court also granted liberty to the first to seventh respondents to apply for further security after the allocation of final hearing dates, and ordered that the applicant pay the respondents' costs of the application for security for costs. These orders were made under section 1335 of the Corporations Act 2001 (Cth) and Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The applicant do provide security for the first to seventh respondents' costs in the amount of $30,000 prior to 16 October 2018.
2. In default of compliance with order 1, the proceedings be stayed until further order.
3. There be liberty to the first to seventh respondents to apply for further security after the allocation of final hearing dates.
4. The applicant do pay the first to seventh respondents' costs of the application for security for costs dated 27 April 2018.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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