mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60
Outcome: cited
If I am wrong about s 107 never being engaged and the delegate was entitled to give the notice which was given, the notice in my opinion failed to comply with s 107 in that it did not particularise the possible non-compliance. Because particulars of the non-compliance were not given, it meant that the appellant could not give a written response to the notice disputing there was non-compliance and showing there was compliance as provided for in s 107(1)(b). The giving of a notice which complies with s 107 of the Act is a statutory precondition to the exercise of the Minister's or delegate's power to cancel the visa: cf. Tien v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1552 ; (1998) 89 FCR 80 ; Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078 ; (2004) 139 FCR 60.
Case: Re ACN 076 673 875 Ltd (2002) 42 ACSR 2096
Outcome: referred to
Re ACN 076 673 875 Ltd (2002) 42 ACSR 2096 at [16], Austin J said that: In formulating his or her attitude to a proposed agreement the liquidator must act in good faith and for a proper purpose but provided he or she does so the court gives the liquidator considerable latitude in exercising his or her commercial judgment.
Case: Re GA Listing &amp; Maintenance Pty Ltd (1994) 15 ACSR 308
Outcome: referred to
principles which govern the exercise of the Court's power under s 477(2B) have been considered in a number of authorities. In Re GA Listing &amp; Maintenance Pty Ltd (1994) 15 ACSR 308 at 310, Young J said that: The whole purpose of liquidation is, to borrow a metaphor used by Sir Laurence Street some years ago, to lead the horse back into the stable. ... Any activity which marks a substantial deviation from the activity of "leading the horse back to the stable" is, generally speaking, outside the power of the liquidator. However, human activity is so diverse that there will be situations where the liquidator cannot lead the horse back to the stable by the direct route. He may have to pause along the way because the path is blocked by some litigation or other impediment.
Case: Re Spedley Securities Ltd (1992) 9 ACSR 83
Outcome: referred to
Honour referred to the observations of Giles J in Re Spedley Securities Ltd (1992) 9 ACSR 83 at 85-86. Giles J there observed that the Court will not ordinarily interfere unless there can be seen to be a lack of good faith, an error or law or principle, or real and substantial grounds for doubting the prudence of the liquidator's conduct.
Case: Warne v GDK Financial Solutions Pty Ltd (2006) 233 ALR 181
Outcome: referred to
Warne v GDK Financial Solutions Pty Ltd (2006) 233 ALR 181 at [58], Austin J said that: Generally speaking, the court grants approval under s 477(2B) only where the transaction is for the proper realisation of the assets of the company or otherwise assists in the winding up of the company. I am satisfied in the present case on the evidence before me that the liquidators have acted in good faith and for a proper purpose. They have retained the services of, and acted upon the advice of, leading solicitors to advise them in relation to the liquidation of the company. The liquidators have satisfied themselves that: The power of attorney which is the subject of the present application is an irrevocable power of attorney and will survive the company's deregistration. Such a power of attorney is authorised by legislation in New South Wales, Victoria, Queensland, Western Australia and the Northern Territory. The relevant legislative provisions are referred to in MFI-1 and it is unnecessary for me to repeat them. As is observed in MFI-1, the position is less certain in Tasmania, South Australia and the Australian Capital Territory, however this difficulty is overcome because the proposed deed provides for an assignment of the financial facilities and securities to the trustee as may be required.
Case: Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Brocklebank &amp; Co v King's Lynn Steam Ship Co (1878) 3 CPD 365
Outcome: cited
Stephen Colbran notes in his text Security for Costs (Longman Professional, 1993) at 41, that prior to the enactment of the Supreme Court of Judicature Act 1873 (UK) [36 &amp; 37 Vict, c 66) security for costs did not apply to past costs and nor would further security be required for a new trial (although an interesting exception to this rule appears to be in the case of Harvey v Jacob (1817) 1 B &amp; Ald 159, 106 ER 59 where the plaintiff, having been convicted of a felony and receiving a sentence of transportation to Australia, was ordered to give security for costs retrospective and prospective). However in 2006 the discretion of the Federal Court vested by s 56 Federal Court Act and s 1335 Corporations Act is very broad, and there is nothing in the terms of either section which would in any way limit the discretion of the Court or its jurisdiction to order security for costs already incurred by the respondents. Indeed, a review of the case law indicates that it is not uncommon for courts to order security for costs already incurred. Examples of cases where such orders have been made are Brocklebank &amp; Co v King's Lynn Steam Ship Co (1878) 3 CPD 365; Massey v Allen (1879) 12 ChD 807; JWH Turner &amp; Co Ltd v O'Riordan (1923) 40 WN (NSW) 64; Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256; Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557; and Bryan E Fencott (and see the discussion of this topic in Colbran at pp 291-292).
Case: CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270
Outcome: cited
Notwithstanding the protective object of an award for security for costs, the onus of persuading the court that an award of security for costs should be made lies on the party seeking the order: see CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284 285, Cherry v Read .
Case: Cherry v Read , unreported, Federal Court of Australia, Black CJ, Sackville and Finn JJ, 21 November 1996
Outcome: cited
Notwithstanding the long-standing principle that the door of the court should not be barred to a prospective applicant because of impecuniosity (Bowen LJ in Cowell v Taylor (1885) 31 Ch D 34 at 38, Full Court of the Federal Court in Cherry v Read (unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 at 8), and note cases discussed in GE Dal Pont Law of Costs LexisNexis Butterworths 2003 at p 955) the protective object of an order for security for costs is well known. As Einstein J said in Idoport Pty Limited &amp; Anor v National Australia Bank Limited [2001] NSWSC 744 at [52] : 'The purpose of a security for costs order is therefore a protective jurisdiction to ensure that the primary purposes for having costs orders themselves, can be achieved. A defendant is protected against the risk that a costs order obtained at the end of the day may turn out to be of no value by reason of the impecuniosity of the plaintiff.' 33 Notwithstanding the protective object of an award for security for costs, the onus of persuading the court that an award of security for costs should be made lies on the party seeking the order: see CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284 285, Cherry v Read .
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920
Outcome: cited
This application for security for costs comes in the context of a dispute which has been the subject of multiple applications during the course of 2006 including adjournment of the original date of the trial ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920) , a recent unsuccessful application for security for costs brought by the respondents ( Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 3) [2006] FCA 1498) , and delays because of extensive objections to evidence (some of which have not yet been determined). As a result of developments including extensive and complex argument concerning objections to evidence of witnesses of the applicants, the non-appearance of a key witness for the applicants and foreshadowed amendment to his evidence, and other unforeseen complications during the course of the two weeks of the trial (which re-commenced 13 November 2006 following the adjournment in July 2006), the hearing of the matter was not completed during the time allocated.
Case: Cowell v Taylor (1885) 31 Ch D 34
Outcome: cited
Notwithstanding the long-standing principle that the door of the court should not be barred to a prospective applicant because of impecuniosity (Bowen LJ in Cowell v Taylor (1885) 31 Ch D 34 at 38, Full Court of the Federal Court in Cherry v Read (unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 at 8), and note cases discussed in GE Dal Pont Law of Costs LexisNexis Butterworths 2003 at p 955) the protective object of an order for security for costs is well known. As Einstein J said in Idoport Pty Limited &amp; Anor v National Australia Bank Limited [2001] NSWSC 744 at [52] : 'The purpose of a security for costs order is therefore a protective jurisdiction to ensure that the primary purposes for having costs orders themselves, can be achieved. A defendant is protected against the risk that a costs order obtained at the end of the day may turn out to be of no value by reason of the impecuniosity of the plaintiff.'
Case: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Harvey v Jacob (1817) 1 B &amp; Ald 159; (1817) 106 ER 59
Outcome: cited
Stephen Colbran notes in his text Security for Costs (Longman Professional, 1993) at 41, that prior to the enactment of the Supreme Court of Judicature Act 1873 (UK) [36 &amp; 37 Vict, c 66) security for costs did not apply to past costs and nor would further security be required for a new trial (although an interesting exception to this rule appears to be in the case of Harvey v Jacob (1817) 1 B &amp; Ald 159, 106 ER 59 where the plaintiff, having been convicted of a felony and receiving a sentence of transportation to Australia, was ordered to give security for costs retrospective and prospective). However in 2006 the discretion of the Federal Court vested by s 56 Federal Court Act and s 1335 Corporations Act is very broad, and there is nothing in the terms of either section which would in any way limit the discretion of the Court or its jurisdiction to order security for costs already incurred by the respondents. Indeed, a review of the case law indicates that it is not uncommon for courts to order security for costs already incurred. Examples of cases where such orders have been made are Brocklebank &amp; Co v King's Lynn Steam Ship Co (1878) 3 CPD 365; Massey v Allen (1879) 12 ChD 807; JWH Turner &amp; Co Ltd v O'Riordan (1923) 40 WN (NSW) 64; Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256; Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557; and Bryan E Fencott (and see the discussion of this topic in Colbran at pp 291-292).
Case: Idoport Pty Limited &amp; Anor v National Australia Bank Limited [2001] NSWSC 744
Outcome: applied
Notwithstanding the long-standing principle that the door of the court should not be barred to a prospective applicant because of impecuniosity (Bowen LJ in Cowell v Taylor (1885) 31 Ch D 34 at 38, Full Court of the Federal Court in Cherry v Read (unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 at 8), and note cases discussed in GE Dal Pont Law of Costs LexisNexis Butterworths 2003 at p 955) the protective object of an order for security for costs is well known. As Einstein J said in Idoport Pty Limited &amp; Anor v National Australia Bank Limited [2001] NSWSC 744 at [52] : 'The purpose of a security for costs order is therefore a protective jurisdiction to ensure that the primary purposes for having costs orders themselves, can be achieved. A defendant is protected against the risk that a costs order obtained at the end of the day may turn out to be of no value by reason of the impecuniosity of the plaintiff.' 29 As submitted by Counsel in Idoport in my view correctly the jurisdiction to award security for costs should thus be seen as protecting the efficacy of the exercise of the jurisdiction to award costs and it is undesirable for the court to permit a situation to arise where a party's success is pyrrhic because an order for costs cannot be met ( Idoport at [33]).
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Outcome: applied
It is well-settled that the court is vested with a discretion to award or not security for costs, and that the power is wide with the need to exercise the discretion judicially being the only relevant limitation ( Bell Wholesale at 3). However, useful guidelines which courts typically take into account in determining such applications were listed by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198 as follows: 1. That such applications should be brought promptly. 2. That regard is to be had to the strength and bona fides of the applicant's case. 3. Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim. 4. Whether the respondent's application for security is oppressive. 5. Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security. 6. Whether persons standing behind the company have offered any personal undertaking to be liable for the costs. 7. Is the party against whom security is sought in substance a plaintiff.
Case: La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Lord Aldborough v Burton (1834) 2 My &amp; K 401; (1834) 39 ER 997
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Massey v Allen (1879) 12 ChD 807
Outcome: cited
Stephen Colbran notes in his text Security for Costs (Longman Professional, 1993) at 41, that prior to the enactment of the Supreme Court of Judicature Act 1873 (UK) [36 &amp; 37 Vict, c 66) security for costs did not apply to past costs and nor would further security be required for a new trial (although an interesting exception to this rule appears to be in the case of Harvey v Jacob (1817) 1 B &amp; Ald 159, 106 ER 59 where the plaintiff, having been convicted of a felony and receiving a sentence of transportation to Australia, was ordered to give security for costs retrospective and prospective). However in 2006 the discretion of the Federal Court vested by s 56 Federal Court Act and s 1335 Corporations Act is very broad, and there is nothing in the terms of either section which would in any way limit the discretion of the Court or its jurisdiction to order security for costs already incurred by the respondents. Indeed, a review of the case law indicates that it is not uncommon for courts to order security for costs already incurred. Examples of cases where such orders have been made are Brocklebank &amp; Co v King's Lynn Steam Ship Co (1878) 3 CPD 365; Massey v Allen (1879) 12 ChD 807; JWH Turner &amp; Co Ltd v O'Riordan (1923) 40 WN (NSW) 64; Estates Property Investment Corporation Ltd v Pooley (1975) 3 ACLR 256; Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557; and Bryan E Fencott (and see the discussion of this topic in Colbran at pp 291-292).
Case: Microcorp Pty Ltd v Terran Computers Pty Ltd, unreported, Federal Court of Australia, Northrop J, 26 June 1992
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Pearson v Naydler (1977) 1 WLR 899
Outcome: cited
However, the courts have traditionally adopted different approaches to individual applicants and corporate applicants. The approach was summarised by Megarry VC in Pearson v Naydler (1977) 1 WLR 899 at 904 as follows: 'In relation to security for costs, there seems to me to be an essential distinction between natural persons and limited companies as plaintiffs. For a natural person, the basic rule is that he will not be ordered to give security for costs, however poor he is... In the case of a limited company, there is no basic rule conferring immunity from any liability to give security for costs. The basic rule is the opposite...'
Case: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)
Case: Re Energy Drilling Inc , unreported, Federal Court of Australia, Gummow J, 3 May 1989
Outcome: cited
(For similar statements considering the purpose of an award of security for costs, see Lord Aldborough v Burton (1834) 2 My &amp; K 401, 39 ER 997; Harpur v Ariadne Australia Ltd (1984) 2 Qd R 523 at 530; Re Energy Drilling Inc (unreported, Federal Court of Australia, Gummow J, 3 May 1989) at [24]; Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, Federal Court of Australia, Northrop J, 26 June 1992) at 16; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [1998] 753 FCA (19 June 1998); Silveira v Australian Institute of Management [2001] FCA 1358 at [6] ; Rocter Tanks Pty Ltd v Adam [2001] SASC 196 at [25] ; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; Wollongong City Council v FPM Constructions Pty Limited [2004] NSWSC 523 at [19] ; La Rosa Constructions Pty Limited v PWR Developments Pty Limited [2004] NSWSC 235 at [7] ; Baygol Pty Ltd v Huntsman Chemical Co Australia Pty Ltd t/a RMAX [2004] FCA 1248 at [9] ; Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109 at [34] .)