FEDERAL COURT OF AUSTRALIA
Fazal v BKA Practice Co Pty Ltd [2021] FCA 626
File number(s): VID 116 of 2021 Judgment of: ANDERSON J Date of judgment: 9 June 2021 Catchwords: PRACTICE AND PROCEDURE – security for costs –
general principles – appeal from Federal Circuit Court – bankruptcy proceeding – consideration of merits of appeal – whether the litigation will be stifled if order for security made – whether there was delay in bringing application – whether applicant’s impecuniosity arises out of respondent’s conduct – security for costs orderedLegislation:
Federal Court of Australia Act 1976 (Cth), s 56
Federal Court Rules 2011 (Cth), r 19.01(1)
Cases cited:
Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462
BKA Practice Co Pty Ltd v Nida [2021] FCCA 334
Concrete Mining Structures Pty Ltd v Cellcrete Australia Pty Ltd (No 2) [2016] FCA 360
Etnyre v Australian Broadcasting Corporation [2021] FCA 610
Kayler-Thomson v Colonial First State Investments Ltd [2020] FCA 1867
Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 21 Date of hearing: Determined on the papers Counsel for the Applicant: The Applicant was self-represented Counsel for the Respondent: Edward Moon Solicitor for the Respondent: Bellei King & Associates ORDERS
VID 116 of 2021 BETWEEN: ROONA NIDA FAZAL
Applicant
AND: BKA PRACTICE CO PTY LTD
Respondent
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
9 JUNE 2021
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders, the applicant is to provide security for costs fixed in the sum of $9,020 (Security Amount).
2.The Security Amount is to be paid into Court.
3.Pursuant to r 19.01(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding be stayed until the applicant has paid the Security Amount in accordance with order 1 above.
4.If the applicant fails to comply with order 1 above, an application may be made for an order that the proceeding be dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) and r 19.01(1)(c) of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
The respondent in this proceeding, BKA Practice Co Pty Ltd, applies for an order that the applicant provide security for costs fixed in the sum of $9,020 and, if the applicant fails to provide such security, the proceeding be stayed. The applicant relies on s 56 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and an affidavit of Mr Jerry Belleli affirmed 10 May 2021.
On 13 May 2021, I made an order that, unless otherwise directed by the Court, the respondent’s application for security for costs would be determined on the papers without an oral hearing.
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- AGLC
- Fazal v Bka Practice Co Pty Ltd [2021] FCA 626
- Case
- [2021] FCA 626
- Decision Date
CaseChat Overview and Summary
The court found that the appeal grounds, particularly those relating to evidence and procedural history, have limited prospects of success. The court accepted that the applicant is impecunious due to her status as an undischarged bankrupt and that the risk of non-payment is material. The amount sought for security for costs was found to be reasonable and not oppressive, as it was less than the amount the applicant offered to pay into the Federal Circuit Court. The court found no evidence that the respondent’s conduct caused the applicant’s impecuniosity, and there was no delay in bringing the application for security for costs.
In light of the above, the court ordered that the applicant provide security for costs in the sum of $9,020, to be paid into Court within 28 days of the date of the judgment. The proceeding was to be stayed until the applicant had paid the Security Amount in accordance with the order. If the applicant failed to comply with the order, an application could be made for an order that the proceeding be dismissed.
The final orders were that the applicant must provide security for costs in the sum of $9,020 within 28 days of the date of the orders, to be paid into Court. The proceeding would be stayed until the applicant had paid the Security Amount in accordance with the order. If the applicant failed to comply with the order, an application could be made for an order that the proceeding be dismissed.
Orders
Orders of the court
1. Within 28 days of the date of these orders, the applicant is to provide security for costs fixed in the sum of $9,020 (Security Amount).
2. The Security Amount is to be paid into Court.
3. Pursuant to r 19.01(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding be stayed until the applicant has paid the Security Amount in accordance with order 1 above.
4. If the applicant fails to comply with order 1 above, an application may be made for an order that the proceeding be dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) and r 19.01(1)(c) of the Federal Court Rules 2011 (Cth).
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
Ratio Decidendi
Legal Principle Established
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