FEDERAL COURT OF AUSTRALIA
Ninan v St George Bank Ltd [2013] FCA 818
Citation: Ninan v St George Bank Ltd [2013] FCA 818 Parties: GEORGE NINAN AND MOLLY GEORGE v ST GEORGE BANK LTD ABN 92 055 513 070, VALUER GENERAL, GODINI LAND DEVELOPMENT PTY LTD ACN 100 701 148 AND RICHARD AH BOEY TAY, DEBORAH ANDREWS, COLIN DYMOND, WANNUNUP DEVELOPMENT NOMINEES PTY LTD ACN 008 853 807 AND PORT BOUVARD LTD, SIMON WROTH, GREG PENN, NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937 and WESTPAC BANKING CORPORATION ABN 33 007 457 141 File number(s): NSD 617 of 2013 Judge(s): EDMONDS J Date of judgment: 15 August 2013 Catchwords: PRACTICE & PROCEDURE – application for leave to appeal from an interlocutory judgment dismissing application to vary orders to provide security for costs and also dismissing proceeding for failure to comply with such orders – principles to be applied where dismissal involves exercise of discretion as matter of practice and procedure Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Foreign Judgments Act 1991 (Cth)
Racial Discrimination Act 1975 (Cth)
Federal Court Rules 2011 r 35.19Cases cited: Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 cited
Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
House v R (1936) 55 CLR 499 cited
Ninan v St George Bank Ltd (2012) 294 ALR 190 discussed
Ninan v St George Bank Ltd (No 2) [2013] FCA 273 discussed
Truth About Motorways Ply Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 1603 citedDate of last submissions: 14 June 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 62 Solicitor for the Applicant: The First Applicant filed submissions on behalf of the Applicants Solicitor for the Second Respondent: State Solicitor’s Office of Western Australia Counsel for the Fourth and Fifth Respondents: Mr MS White Solicitor for the Fourth and Fifth Respondents: Lander & Rogers Solicitor for the Sixth Respondents: The Company Secretary of Port Bouvard Ltd filed submissions on behalf of the Sixth Respondents Solicitor for the Seventh and Eighth Respondents: Colin Biggers & Paisley Counsel for the Ninth Respondent: Mr R Bellamy Solicitor for the Ninth Respondent: Gadens Lawyers Counsel for the Tenth Respondent: Mr P Newton Solicitor for the Tenth Respondent: Kemp Strang
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY
GENERAL DIVISION
NSD 617 of 2013
BETWEEN: GEORGE NINAN AND MOLLY GEORGE
ApplicantAND: ST GEORGE BANK LTD ABN 92 055 513 070
First RespondentVALUER GENERAL
Second RespondentGODINI LAND DEVELOPMENT PTY LTD ACN 100 701 148 AND RICHARD AH BOEY TAY
Third RespondentDEBORAH ANDREWS
Fourth RespondentCOLIN DYMOND
Fifth RespondentWANNUNUP DEVELOPMENT NOMINEES PTY LTD ACN 008 853 807 AND PORT BOUVARD LTD
Sixth RespondentSIMON WROTH
Seventh RespondentGREG PENN
Eighth RespondentNATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937
Ninth RespondentWESTPAC BANKING CORPORATION ABN 33 007 457…
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- Case
- [2013] FCA 818
- Decision Date
CaseChat Overview and Summary
The court considered whether there had been a material change in circumstances since the security for costs was ordered, or whether new evidence had come to light that could not reasonably have been adduced earlier. The applicants argued that the new Federal Court Rules, which came into effect on 1 August 2011, should alter the approach to varying security for costs orders. However, the court found that there had been no material change in circumstances since the original security for costs order, and no new evidence had been presented. The applicants' impecuniosity, their residency outside Australia, the deficiencies in the pleadings, and the lack of admissible material suggesting matters of public interest remained unchanged. The court declined to vary the security for costs orders, finding that the applicants had not demonstrated any basis to warrant such a variation.
In conclusion, the court upheld the original security for costs orders, finding no material change in circumstances or new evidence that would justify a variation. The court emphasised that such orders should not be varied lightly, particularly after a contested hearing. The applicants' failure to comply with the security for costs orders led to the dismissal of their proceedings, and the court found no error in the primary judge's refusal to vary those orders. The applicants' arguments regarding the new Federal Court Rules were rejected, as there was no indication that these rules altered the criteria for varying security for costs orders.
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