Drumdurno Pty Ltd v Braham

Case [1982] FCA 167


Re: DRUMDURNO PTY. LIMITED and RODONO PTY. LIMITED
And: MELVYN MARTIN BRAHAM; ADELE CLAIRE BRAHAM; DANIEL SLATER and JOSEPH KNOWL
(1982) 64 FLR 227
No. VG37 of 1982
Practice and Procedure - Practice
7 ACLR 131

COURT

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.(1)
CATCHWORDS

Practice and Procedure: -application by first and second named respondents for an order that the applicants provide security for costs - discretion of the court to make such an order - whether applicants had a reasonably good prospect of success - whether applicants want of means had been brought about by the wrongful conduct of the respondents - whether applicants' claim was bona fide and not a sham - whether the proceedings involved matters of public importance - whether the respondents were using the application oppressively - whether the making of such an order would mean that the applicants' claim would be at an end - no evidence of willingness and means of the shareholders of the applicant companies to assist - exercise of discretion.

Federal Court of Australia Act (C'th): S56

Companies Act (Vic): S363

Practice - Security for costs - Action by impecunious companies - Merits of applicants' cases - Whether respondents had contributed to applicants' impecuniosity - Whether application oppressive - Federal Court of Australia Act 1976 (Cth), s. 56(1) - Companies Act 1961 (Vic.), s. 363.

HEADNOTE

The applicants had brought proceedings against the respondents alleging breaches of Pt V of the Trade Practices Act 1974 in connexion with the creation of a franchise agreement between the applicants as franchisee and a company, of which the respondents were directors, as franchisor. The applicants were corporations with small paid-up capitals. The second respondent by affidavit denied the allegations of the applicants, while the first respondent indirectly, by his solicitor's affidavit, denied those allegations. The first applicant amended its application to delete any claim against the second respondent. The respondents brought an application seeking security for costs.

Held: (1) It had not been shown that any conduct of the respondents had led to the impecuniosity of the applicants.

(2) (a) The second applicant had not established a reasonable prospect of succeeding in its action against the second respondent. (b) The applicants' claim against the first respondent appeared to be bona fide.

(3) (a) The applicants should provide security for costs in respect of their claims against the first respondent up to the completion of interlocutory steps. (b) In the case of the second applicants' action against the second respondent, a similar order should be made. Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (1977) 30 FLR 343; Buckley v. Bennell Design & Constructions Pty. Ltd. (1974) 1 ACLR 301; Pearson v. Naydler (1977) 1 WLR 899; Pacific Acceptance Corporation Ltd. v. Forsyth (No. 2)(1967) 2 NSWR 402; Sir Lindsay Parkinson & Co. Ltd. v. Triplan Ltd. (1973) 1 QB 609; National Bank of New Zealand Ltd. v. Donald Export Trading Ltd.…

Continue reading Drumdurno Pty Ltd v Braham

Sign in free to access the full text

Details
AGLC
Drumdurno Pty Ltd & Anor v. Braham, M.M. & Ors [1982] FCA 167 ((1982) 64 FLR 227; 7 ACLR 131)
Case
[1982] FCA 167
Decision Date

CaseChat Overview and Summary

The case of Drumdurno Pty Ltd v Braham involved a legal dispute before the court, with Drumdurno Pty Ltd and its director, as well as two other companies, bringing claims against the respondents. The respondents sought an order for security for costs, arguing that the applicants lacked the financial means to cover potential costs and that their claims were not particularly strong. The court was tasked with determining whether the applicants had a reasonable prospect of success, if their financial situation was due to wrongful conduct by the respondents, whether the claims were genuine, and if the proceedings involved matters of public importance.

The court considered several factors in exercising its discretion regarding security for costs. It examined the applicants' prospects of success, noting that there was no strong evidence of a reasonable chance of prevailing. Additionally, the court found that the applicants' financial difficulties were not due to any wrongdoing by the respondents. The claims were also deemed not to be of public importance, and there was no indication that the respondents were using the application oppressively. The court concluded that an order for security for costs would not necessarily prevent the applicants from continuing with their claims.

Following this analysis, the court ruled that the applicants must provide security for costs to the respondents. Specific amounts for this security were to be determined later. The court also granted the respondents the right to apply for further orders if necessary and reserved questions regarding costs for future determination. This decision ensured that the respondents would not be unduly burdened by the costs of the proceedings, while still allowing the applicants to pursue their claims.

Orders

Orders of the court

1. that the applicants provide security for the costs of the first named respondent in respect of the period up to the point where all interlocutory steps in the application have been completed, in an amount to be decided hereafter.

2. that the first named applicant provide security for the costs of the second named respondent in respect of the period up to 15 June 1982 when the first named applicant obtained leave to amend the application so as to delete any claim by it against the second named respondent, in an amount to be decided hereafter.

3. that the second named applicant provide security for the costs of the second named respondent in respect of the period up to the point where all interlocutory steps in the application have been completed, in an amount to be decided hereafter.

4. that liberty be reserved to any party to apply generally, upon seven days notice to the other parties.

5. that all questions of costs be reserved. Orders accordingly.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.