Roo Roofing Pty Ltd v Commonwealth of Australia

In the matter of Roo Roofing Pty Ltd versus the Commonwealth of Australia, the Federal Court was tasked with determining whether the security for costs provided by the defendant was sufficient. The defendant, funded by an overseas litigation funder, proposed a package of security which included a personal undertaking to pay any costs awarded against the plaintiffs, insurance coverage for any adverse costs for the benefit of the funder, and the deposit of funds to facilitate the overseas registration and enforcement of a costs judgment. The plaintiffs sought an alternative arrangement, specifically the deposit of cash or a bank guarantee into the Court.

The court had to assess whether the security proposed by the defendant's funder was adequate under the Civil Procedure Act 2010 (Vic) and relevant case law. The plaintiffs argued that the proposed security was not sufficient, as it did not guarantee that the Court would have immediate access to funds if needed. The court considered the cases of DIF III Global Co-Investment Fund LP & anor v BBLP LLC & ors, Trailer Trash Franchise Systems Pty Ltd and anor v GM Fascia & Gutter Pty Ltd, and Petersen Superannuation Fund Pty Ltd v Bank of Queensland and anor, to determine the adequacy of the proposed security.

The Federal Court found that the package of security proposed by the defendant's funder was not adequate. The court held that the plaintiffs would not have immediate access to the funds in the event of an adverse costs order. The court noted that the deposit of cash or a bank guarantee into the Court was the preferred method of providing security for costs, as it ensured that the plaintiffs would have immediate access to funds. The court ordered the defendant to deposit cash or a bank guarantee into the Court within 28 days of the judgment.