Fimiston Investments Pty Ltd (in liq) v Pecker Maroo Pty Ltd

Fimiston Investments Pty Ltd (in liquidation) was the plaintiff in a proceeding against Pecker Maroo Pty Ltd, the defendant. The plaintiff had provided a personal guarantee as security for costs in the litigation, but subsequently entered into liquidation. Pecker Maroo sought to enforce the guarantee against the guarantor, Wayne Ronald Luxford. The dispute involved the enforceability of the security for costs in light of the plaintiff's liquidation and whether the defendant needed leave to proceed against Luxford under the Corporations Act 2001. Additionally, there was a question regarding the appropriateness of summary judgment in the case and whether there were any triable issues of fact present.

The court examined the necessity of leave under section 471B of the Corporations Act 2001 for enforcing the security for costs, particularly in light of pre-existing costs orders. It also considered whether the costs were due and payable, and whether there were any triable issues of fact that would preclude the use of summary judgment. The court found that the defendant did not need leave to enforce the security for costs since the costs were due and payable. The court further determined that there were no triable issues of fact, thus making the summary judgment procedure appropriate.

In light of these findings, the court vacated previous orders and granted the defendant leave to proceed against Luxford. It ordered Luxford to pay the specified amount of costs, including interest, from 28 April 2011 to 2 December 2011. The application for directions was adjourned pending further notice. Unless submissions were received within seven days, Luxford was to pay the defendant's costs of the application limited to one day's hearing, but no order was made regarding the costs of the application seeking leave to proceed.

The final orders included the vacating of certain orders, granting leave to proceed against Luxford, ordering Luxford to pay specified costs, and setting conditions for the payment of costs if submissions were not received within the stipulated timeframe. The application for directions was also adjourned.