FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAMES v MCEVOY & ANOR | [2011] FMCA 604 |
| PRACTICE & PROCEDURE – Application for security for costs – applicant resident overseas with negligible assets in Australia. |
| Trade Practices Act 1974, s.52 Evidence Act 1995, s.174 Foreign Judgments Act 1991 Federal Magistrates Court Rules 2001, r.21.01 Federal Court Rules 1979, O.28 Uniform Civil Procedure Rules 2005 (NSW), pt.42 Foreign Judgments Regulations 1992 |
| Applicant: | JUSTIN GERMAINE JAMES |
| First Respondent: | LUCINDA JANE MCEVOY |
| Second Respondent: | MICHAEL BARAKAT |
| File Number: | SYG 455 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 June 2011 |
| Date of Last Submission: | 15 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. King |
| Solicitors for the First Respondent: | Whites Lawyers |
| Counsel for the Second Respondent: | Mr M. Sahade |
| Solicitors for the Second Respondent: | Trinity Legal |
ORDERS
The applicant provide security for the first respondent’s costs of the proceedings in the amount of $22,850 in a form acceptable to the Registrar of the Court.
Until such time as the security ordered in order 1 is provided, the proceedings as against the first respondent be stayed.
The applicant provide security for the second respondent’s costs of the proceedings in the amount of $22,000 in a form acceptable to the Registrar of the Court.
Until such time as the security ordered in order 3 is provided, the proceedings as against the second respondent be stayed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 455 of 2011
| JUSTIN GERMAINE JAMES |
Applicant
And
| LUCINDA JANE MCEVOY |
First Respondent
| MICHAEL BARAKAT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr James, has brought these proceedings alleging that the first respondent, Ms McEvoy, engaged in misleading and deceptive conduct in breach of s.52 of the Trade Practices Act 1974, that the second respondent, Mr Barakat, breached a partnership agreement into which he, Ms McEvoy and Mr James had entered, that Ms McEvoy and Mr Barakat breached an agreement into…
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- AGLC
- James v McEvoy [2011] FMCA 604
- Case
- [2011] FMCA 604
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether James was required to provide security for costs in relation to the proceedings against both respondents and, if so, what the implications of such a requirement would be. The court had to consider whether the applicants’ claims had reasonable prospects of success and whether there were any special circumstances that warranted an order for security for costs.
The court found that James had not demonstrated that his claims had reasonable prospects of success, and as such, ordered that he provide security for costs against both respondents. The court emphasised that the applicants' claims were speculative and that the evidence provided did not substantiate the allegations. As a result, the court ordered that until the security was provided, the proceedings against both respondents would be stayed. This decision underscored the importance of demonstrating a viable claim before proceeding with litigation.
Orders
Orders of the court
1.
The applicant provide security for the first respondent’s costs of the proceedings in the amount of $22,850 in a form acceptable to the Registrar of the Court.
2.
Until such time as the security ordered in order 1 is provided, the proceedings as against the first respondent be stayed.
3.
The applicant provide security for the second respondent’s costs of the proceedings in the amount of $22,000 in a form acceptable to the Registrar of the Court.
4.
Until such time as the security ordered in order 3 is provided, the proceedings as against the second respondent be stayed.
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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