Frigger v Professional Services of Australia Pty Ltd

The case of Frigger v Professional Services of Australia Pty Ltd involved the Friggers, the plaintiffs, and Professional Services of Australia Pty Ltd (PSA), the defendants. The dispute centred on the defendants' application for security for costs of the plaintiffs' originating application, which sought to invalidate the registration of PSA and have it removed from the Organisation and Business Names register. The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether the plaintiffs should be required to provide security for the costs of defending the originating application, as requested by the defendants.

The court had to decide whether the defendants' application for security for costs complied with the court's orders and the Federal Court Rules 2011. Additionally, the court considered whether the plaintiffs' recent bankruptcy and history of non-payment of cost orders indicated a real risk that the defendants would not be satisfied if costs orders were made against the plaintiffs. The court also had to assess the plaintiffs' prospects of success in the originating application and the reasonableness of the proposed security amount.

The court found that although the defendants' application was not formally filed until 8 November 2022, the plaintiffs had been served with the application, supporting affidavit, and submissions by email on 26 October 2022. However, the court extended the time for compliance with its earlier orders and dispensed with service of the application. The court held that the plaintiffs' recent bankruptcy and history of non-payment of costs indicated a real risk that the defendants would not be satisfied if costs orders were made against the plaintiffs. The court also noted that the plaintiffs' prospects of success in the originating application were not strong. Considering these factors, the court ordered that the plaintiffs provide security for the costs of the defendants in the sum of $35,000, to be given by payment into court or by an unconditional bank guarantee from an Australian trading bank. The originating application and proceedings were stayed until the security was provided. The plaintiffs were also ordered to pay the defendants' costs of the interlocutory application for security for costs.