mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163
Outcome: cited
In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163.
Case: Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.
Case: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446
Outcome: cited
In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163.
Case: P S Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642
Outcome: cited
In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163.
Case: Ratepayers &amp; Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746
Outcome: cited
Once the threshold prescribed by s 1335 is satisfied, the discretion as to whether to order security for costs is an unqualified one: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 3; Sir Lindsay Parkinson &amp; Co Ltd v Triplan Ltd [1973] QB 609; Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294; Ratepayers &amp; Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746.
Case: Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.
Case: Sir Lindsay Parkinson &amp; Co Ltd v Triplan Ltd [1973] QB 609
Outcome: cited
Once the threshold prescribed by s 1335 is satisfied, the discretion as to whether to order security for costs is an unqualified one: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 3; Sir Lindsay Parkinson &amp; Co Ltd v Triplan Ltd [1973] QB 609; Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294; Ratepayers &amp; Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746.
Case: Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294
Outcome: cited
Once the threshold prescribed by s 1335 is satisfied, the discretion as to whether to order security for costs is an unqualified one: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 3; Sir Lindsay Parkinson &amp; Co Ltd v Triplan Ltd [1973] QB 609; Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294; Ratepayers &amp; Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746.
Case: Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976)
Outcome: distinguished
Given the extent to which Deumer stands to gain from the proceedings if they are successful, and that the cause of action is apparently the only asset of Cosdean which may enable it to be paid, or to be substantially paid, under its agency agreement with Cosdean, and that in essence it has no real competing external creditors who might participate in any award of damages, I think it is reasonable that Deumer support Cosdean in the prosecution of the claim, or at least that it have the opportunity to do so. It may wish to make its own assessment of Cosdean's prospects of success in the proceedings or of the likely award of any damages, and balance those things against the amount of the further security for costs I have ordered. That is a matter for Cosdean and Deumer. The circumstances are different from those where there are a number of creditors, including small creditors: cf Yandil 3 ACLC 542 at 545; Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976). There is no other evidence of commercial impracticability in Deumer supporting Cosdean in the claim; see Ariss (1996) 2 VR 507 at 515 per Phillips JA.
Case: Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542
Outcome: distinguished
In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163. 27 Given the extent to which Deumer stands to gain from the proceedings if they are successful, and that the cause of action is apparently the only asset of Cosdean which may enable it to be paid, or to be substantially paid, under its agency agreement with Cosdean, and that in essence it has no real competing external creditors who might participate in any award of damages, I think it is reasonable that Deumer support Cosdean in the prosecution of the claim, or at least that it have the opportunity to do so. It may wish to make its own assessment of Cosdean's prospects of success in the proceedings or of the likely award of any damages, and balance those things against the amount of the further security for costs I have ordered. That is a matter for Cosdean and Deumer. The circumstances are different from those where there are a number of creditors, including small creditors: cf Yandil 3 ACLC 542 at 545; Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976). There is no other evidence of commercial impracticability in Deumer supporting Cosdean in the claim; see Ariss (1996) 2 VR 507 at 515 per Phillips JA.